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https://archive.org/details/protectionofweakOOkatz 


PROTECTION OF THE WEAK 
IN THE TALMUD 


COLUMBIA UNIVERSITY PRESS 
COLUMBIA UNIVERSITY 
NEW YORK CITY 


FOREIGN AGENTS 


HUMPHREY MILFORD 
AMEN HOUSE, E.C. 
LONDON 


EDWARD EVANS & SONS, LTD. 
30 NORTH SZECHUEN ROAD 
SHANGHAI 









unt OF PRINGE » 


~ 4 
, FEB27 1926 
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COLUMBIA UNIVERSITY ORIENTAL STUDIE 
VOL. XXIV 


PROTECTION: OF THE WEAK 
IN THE TALMUD 


BY 


MORDECAI KATZ, B. Lit: A. M.; Ph. D. 





New Pork 
COLUMBIA UNIVERSITY PRESS 
1925 


COPYRIGHT 1925 
By COLUMBIA UNIVERSITY PRESS 


Printed from type. Published December, 1925. 


Printed in the U.S. of America 


To My Wife 
DR. HELEN RABINOWITZ-KATZ 


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NOVI TE 


The study of the means adopted by the men of 
olden times by which those who were born weak or 
became so were protected, is one that is always of in- 
terest. It is especially so in connection with the Jews 
who lived at the time when the Talmud was taking 
form. Much bitterness of epithet has been employed 
from time to time in describing the men who lived 
and worked at that period, and the description of the 
men has carried. in its wake the depreciation of the 
circumstances in which they lived and of the amelio- 
ration that they endeavored to’ produce. 


The present work of Dr. Mordecai Katz deals dis- 
tinctly with the Talmudic laws put out for the pur- 
pose of protecting the weak. Dr. Katz has gone to 
the ultimate sources and has been able to place be- 
fore us a succinct account of that which the rabbis 
of the Talmudic period felt it to be their duty to do 
in relieving the position of laborers, slaves, minors, 
women, debtors, and the like. The work is valuable 
in two ways: it has been done in a perspicuous man- 
ner and has been effected in English in order that he 
who has not cognizance of Hebrew and Aramaic may 
have the possibility of acquainting himself with the 
subject. I am glad to commend his book to the very 
many who must be interested in this field. 


RICHARD GOTTHEIL. 


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PREFACE 


An attempt has been made in this thesis to show how 
the Talmudic sage always endeavored to protect the 
weaker members of the society, though by doing so they 
sometimes had to violate the letter, if not the spirit, of 
the Biblical Law. For this purpose, the writer has made 
a careful study of all the laws for the protection of the 
weak, to be found in the Mishnah, Tosefta and the Baby- 
lonian and Palestinian Talmuds, as gathered and ar- 
ranged in the code of laws by Maimonides named the 
Yod ha-Hazakah. 


The weaker during the Talmudic period may be classi- 
fied as follows: 
1. Free laborers. 
. Non-Jewish slaves. 
. Jewish slaves. 
Minors. 
Women. 
Debtors. 
. Tenants. 
8. The Poor. 

While in his introduction the author has briefly enum- 
erated the principal laws for the protection of these 
classes, without even showing the sources of most of 
them, he has, however, treated the same laws in the 
treatise itself specifically and elaborately, giving their 
sources and development from the Biblical times down 
to the Talmudic period. 

To his teachers, Prof. Richard Gottheil, Columbia 
University, and to Prof. Louis Ginzberg, Jewish Theo- 
logical Seminary of America, the author renders grateful 
acknowledgment of the guidance and valuable sugges- 
tions they gave him in the writing of this treatise. 

He is also indebted to Rabbi I. L. Bril, Dr. Sandor A. 
Levinsohn, Aaron O. Weinberg, Esq., and Mr. Harold 
Berman, for reading parts of the manuscript. 


NASR WL 


M. K. 
New York, Dec., 1925. 


Vill. 


CONTENTS 


Introduction Mii. fail. a a aleeeee eeee ereene 1 
Free’ Laborers; iho) ot ater eee ete ate 22 
Non-Jewish \Slavese 4) er. aa rea een 30 
Jewish (Slaves Pio. Saturn cee ee cca ee 39 
MATOS io aos Sig ta be co del oe et ties Ne Ce ee 45 
'WOmdeD 2 ois sie eo Sadek eee a 56 
Debtors: ij. Sete Set ee or we ee 62 
Tenants |.) ice ve wes gee eke a an ae ee ae 72 
The Poor re cee Pe ee eek as ee 78 
SUMMALY oc e hci ke 2o wie nae eee a ene ee 82 


Columbia University Oriental Studies 


INTRODUCTION 


THE BIBLICAL AND THE TALMUDIC LAW WITH 
REGARD TO THE WEAK 


The sources of the Jewish code of laws are to be found 
in the various legal portions of the Pentateuch, and the 
several later works embodying the Oral Law handed 
down to the Jews by way of tradition, in contradistinc- 
tion to the written laws. The written laws of the Penta- 
teuch sufficed only for the primitive conditions of Jewish 
life of that time. With the gradual development and con- 
sequent complexity of that life, there came new demands, 
new conceptions and new customs, so that the Jewish 
laws had to be broadened or modified accordingly. The 
Jewish jurists felt obliged not only to enact new laws 
but also to abolish long established laws in order to meet 
the changed conditions of life. By means of a peculiar 
and an entirely original method of interpretation, the 
Jewish jurists were frequently able to prove that the new 
enactments were only the logical steps in the develop- 
ment of the old written laws. In this manner, the sanc- 
tity of the ancient written laws was transmitted to the 
new laws as well. 


These new laws remained unwritten for centuries after 
their promulgation. They were not to be found in any 
code or law book, but yet they were studied in all schools 
and recognized by all the courts. In form, they were 


2 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


similar to the English Common Law. As long as these 
unwritten laws existed, both in theory as well as in prac- 
tice, nobody ever thought of the need for their codifica- 
tion, just as the English people do not think it necessary 
to codify their Common Law. ‘It may be assumed with 
certainty that attempts to codify some parts of the un- 
written laws were made at a comparatively early age, 
as early in fact, as the first century of the Common Era. 
Nothing, however, has come down to us of these early 
attempts, excepting some fragments that were later in- 
corporated with the Mishnah. The Mishnah is the name 
of an extensive collection of laws gathered by Rabbi 
Judah, the Patriarch. The date of its compilation may 
be fixed as at about 220 of the Common Era. 


Owing to the great authority enjoyed by Rabbi Judah, 
the Patriarch, his compilation became a sort of canonical 
collection of the teachings of the Tannaim (‘Teachers’), 
forming the text books of the students of the Oral Law, 
around which centered all the comments, discussions and 
the additional matter produced by all succeeding genera- 
tions. Sundry other collections, likewise confined to the 
teachings of the Tannaim, but composed in schools not 
presided over by the Patriarch, pass under the name 
either of Mishnah ha-Hizonah (more frequently termed 
by the Aramaic title Beraita), the External Mishnah, or 
of Tosefta, addition to the Mishnah. The Mishnah served 
as a basis for the production of the two Talmuds named 
after the respective countries of their production, namely, 
the Palestinian Talmud, called the Talmud of Jerusalem, 
and the Babylonian Talmud. Used by itself, the term— 
Talmud—denotes the Babylonian Talmud. The Pales- 
tinian Talmud was compiled at approximately the year 
350 of the Common Era. The Babylonian Talmud was 
edited and compilated by Rab Ashi and Rab Abina at 
about 500 of the Common Era. The latter is by far the 
larger and the more comprehensive of the two. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 3 


The main objective of both Talmuds is the interpre- 
tation of the Mishnah, to trace the sources of its laws, 
give reasons for them, to explain obscure passages, as 
well as real or seeming contradictions by the aid of par- 
allel passages in the External Mishnah, and to illuminate 
this matter and to expand its contents, especially in the 
branches of the Civil Law, by citing such cases as a com- 
plex life and altered circumstances were constantly furn- 
ishing. It is perhaps due to this latter quality that the 
text of the Talmud proper, as distinguished from the 
Mishnah, is called Gemara, meaning, according to some 
authorities, supplement, or complement of the Mishnah. 
The jurisdiction of the Talmudic laws was undisputed, 
its sway extending both over secular as well as purely 
religious matters. 


THE ETHICAL BASIS OF THE BIBLICAL AND 
THE TALMUDIC LAW 


The Biblical laws, although written in the form of the 
categorical imperative of “thou shalt” and “thou shalt 
not’, are, in reality, based upon the ethical principles of 
Justice and righteousness that underly the Jewish re- 
ligion. The foundation of the Jewish law was not a po- 
litical or a national one, but a religious concept. Even 
during the time when the Jewish government was func- 
tioning, the laws of the land were promulgated not by 
the political, but by the religious bodies. The religious 
principles of Justice and righteousness were zealously 
advocated by the prophets, who were the exponents of 
the Jewish religion at that time. 


The Hebrew prophets differed from the Greek philo- 
sophers. The Greeks were not moralists, but utilitarians. 
There must be some order in the world, they reasoned, 
as otherwise people “would swallow each other’ and so- 


+ COLUMBIA UNIVERSITY ORIENTAL STUDIES 


ciety would perish. An entirely different viewpoint was 
that of the Hebrew prophets. The Almighty God is the 
sole ruler over man and the social order. The ancient 
social life of the Hebrews was of the tribal order. All 
the members of the tribe were considered as equal by 
the patriarch. All enjoyed the same privileges. God was, 
in turn, the patriarch of all the tribes, consequently all 
the members of the Hebrew nation were equal before 
God. This explains why the Hebrew prophets were so 
outspoken against any oppression of the poor by the rich, 
and of the weaker by the stronger ones. God is the 
source of all Justice, of righteousness. Hence, the Jewish 
laws must always be expressive of the spirit of Justice 
and righteousness. 


The Scribes and after them the Rabbis, continued the 
work of the prophets, carrying on the earlier tradition 
of these men of vision. The Rabbis elaborated the ethi- 
cal ideals of the Jewish religion and incorporated them 
into the Talmudic laws. The revolt of the prophets 
against oppression was echoed and re-echoed throughout 
all the generations, greatly influencing Jewish jurists, 
who, as a result, always endeavored to protect the weak- 
er members of society and especially the laborers, as far 
as lay in their power so to do. 


FREE LABORERS 


Slavery formed an integral institution within all ancient 
social units. Slavery represented the great labor force of 
the nation. War, or the preparation for war, was the 
principal occupation of the masters, while the bulk of the 
peaceful work necessary for the life of the community 
and which the masters themselves despised to do, was 
performed by the slaves. 


The ancient, semi-civilized peoples considered manual 
labor as unsuitable to freemen and even degrading. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 5 


Robbery and piracy were considered as the most proper 
means for obtaining a livelihood. Even the Greeks and 
the Romans could not rise to the conception that honest 
and useful work was the only proper means of one’s sup- 
port. Even the philosophers and teachers of the Greeks 
and the-Romans looked down upon the working classes 
as eo ipso degraded and'miserable creatures. 


The attitude of the Jews toward labor was entirely 
different however. Even if it be true that the Hebrew 
word “lechem,” bread, is closely connected with the word 
“milchama,” meaning “war,” which definition would 
show that there was a time when the ancient Jews 
thought of war as the primary and only means of obtain- 
ing a livelihood, it is nevertheless true that the Jews 
developed at a very early period in their history their 
higher moral concepts, and, together with these, a higher 
appreciation of the virtues of manual labor. 


The biblical pronouncement that “in the sweat of thy 
brow shalt thou eat bread” (Genesis 3.19) conclusively 
proves that the ancient Hebrews granted the moral right 
to eat bread only to those who had earned it by their own 
effort. This idea was sustained and greatly developed by 
the prophets, who, in turn, conveyed it to their successors, 
the Scribes and the Rabbis. The injunction of the Talmud 
was: “Flay the carcass of an ass in the market place and 
earn your pay; do not say ‘I am a great man, and the 
work does not become me.’” (Baba Batra 110 a). As 
early as half a century B.C. a Jewish sage, in opposition 
to the teachings of the Greeks, had said: “Love work 
-and hate lordship” (Aboth 1.10). The respect for work 
which this saying and many similar sayings imply, could 
not but have a great and lasting influence on the status 
of labor in-the succeeding Talmudic days. 


The main regulations for the protection of the laborer 
are found in the Talmud, it is true, but the principles 


6 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


underlying these regulations were laid down in the Bible 
at a much earlier date. 


Naturally, the most important thing for the laborer 
is his earnings. The Bible therefore provided that the 
wages of a hired laborer should not abide with the em- 
ployer “all night until the morning” (Lev. 19.13; Deut. 
24.14, 15), which implied that each day’s work should be 
paid for when completed. Beside this specific provision 
for the protection of the hired laborer, there are in the 
Bible many other provisions for the protection of the 
poor, the orphan, the widow, and the debtor, who also 
were laborers, either employed or out of employment 
(Lev. 26.6; Deut. 1.16; 24.17; 27.19.—Exod. 22.24-27). 


The desire to protect the laborer, so repeatedly mani- 
fested in the Bible, was upheld with great thoroughness 
and zeal by the prophets Jeremiah (Jer. 6.7; 22.3), Eze- 
kiel (Hzek. 22.7, 29), and Malachi (Mal. 3.5), and especi- 
ally by the latter, and exerted a great influence in turn on 
the Scribes and the Rabbis of the Post Biblical eras. 


The Rabbis granted special privileges to the hired la- 
borer and artisan. A contract for labor, for instance, 
although binding on the employer, was not in the same 
degree binding on the employee. An employer who was 
sued for withholding the wages of a hired laborer or ar- 
tisan, could not free himself from payment by taking an 
oath. In such a case, the Rabbis denied the defendant 
the privilege of taking an oath, and granted it to the 
plaintiff. The employee who affirmed his claim by an 
oath was awarded the payment of his wages, although, 
according to the general law, it is the defendant and not 
the claimant that takes the oath, swearing that he did 
not owe the sum claimed. 


The Rabbis took great pains to enact various regula- 
tions for the protection of the laborer and artisan in dis- 
putes regarding hours of work and wages, and whether 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 7 


these had been paid for or not. They elaborated and 
broadened the Biblical laws with a view of protecting the 
laborer, even if by doing so they had to override the 
strict letter of the law. 


The following story is told in the Talmud: 


Rabbah, the son of Huniah, engaged certain carriers 
to transport some barrels of wine from one place to 
another. In handling these barrels, the carriers, evident- 
ly through carelessness, (see Rashi) broke one barrel, 
spilling the wine. Rabbah, the employer, took away their 
mantles in order to secure himself for the payment of the 
damage, a course of conduct which the law clearly sanc- 
tioned. The carriers, however, hailed him before Abba 
Arika, who ordered him to return the mantles. When 
Rabbah asked: “Is this the law?” Abba Arika answered, 
“Yes,” (quoting Proverbs 11.20) “in order that thou 
mayest walk in the ways of good men.” The carriers 
then said: “We are poor laborers, we have spent the 
whole day on this work and now we are hungry and have 
nothing to eat.” Abba Arika then ordered the employer, 
Rabbah, to pay them the stipulated wages. To the ques- 
tion of Rabbah: “Is this the law?”’ Abba Arika answered, 
“Yes,” quoting the second half of the verse in Proverbs, 
“and keep the path of the righteous” (Baba Mezia 83 a). 
The law explicitly gave the employer the right to make 
the carriers pay for the damage they caused by their 
carelessness. Abba Arika, however, thought that proper 
consideration for the poor laborers should outweigh the 
letter of the law. He quotes the higher law which en- 
joins us “To walk in the way of good men.” This higher 
law should make one forego his legal claims when those 
affect the well being of a poor laborer. 


There are no special provisions in the Talmud with 
regard to the labor of women and children. Women and 
children were usually hired exclusively for farm labor 
(Baba Mezia 93a). The unfavorable and dangerous 


8 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


conditions for women and children workers that are the 
result of the rapid and enormous development of indus- 
try, and which impel our legislatures to adopt special 
labor laws for the protection of women and children, 
were not even thought of in the Talmudic period. The 
Talmudists, therefore, did not find it necessary to enact 
special labor laws for women and children, when enac- 
ting regulations for the protection of the free and non- 
free laborers. 


‘NON-JEWISH SLAVES 


Non-free labor or slavery existed among the Jews at 
a very early period. The Bible probably was unable to 
abolish it entirely, as the Jews of the Biblical period 
would have been unwilling to abolish it because of neces- 
sity. The Biblical law, therefore, did not altogether pros- 
cribe the institution of slavery, but endeavored to im- 
prove the condition of the slaves and protect them in 
every possible way. 


J 


The slave was called “ebed”’. If he had been bought, 
this term was supplemented by the term “‘Miknat keseff,”’ 
bought for money. -If he was born of slave parentage in 
the household, he was called ‘ben bayit’, son of the 
house, or “‘yelid bayit”’, born in the house, these terms 
being almost, or quite, synonymous. All these related 
to non-Jewish slaves. 


Among the Jews, the slave was never obliged to strug- 
gle for recognition as a human being. The Jews ab- 
horred the views of other nations, such as the Babylo- 
nians and others and as expressed or implied in the 
Hammurabi Code, under which the slave was a mere 
chattel, whose owner could kill him without responsibil- 
ity, because he was merely destroying a piece of proper- 
ty, the loss of which was ‘his own and concerned no one 
else. Entirely different views were reflected in the Jewish 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 9 


laws. Personal injuries to a slave were considered as 
crimes punishable by the state. If a master maimed his 
slave in such a manner that it resulted in the loss of a 
tooth or an eye, the slave obtained his freedom as a re- 
sult of this act of cruelty (Exod. 21.25). 


The feature that contributed most of all to the bet- 
terment of the slave’s position was his admission to par- 
ticipation in the family worship. Tradition refers this 
to very ancient times. The covenant of Abraham was to 
be entered into not only by every male member of the 
immediate family, but the master’s obligation was to 
initiate every male slave into the covenant (Gen. 17.9, 
11,12). This was not a form of compulsion exercised 
upon the slave, but a privilege granted to him in order to 
advance his standing in the household of the master. 
We also learn from the Bible, that the slaves were uni- 
formly treated as members of the family, after whose 
well-being the master cared as zealously as for that of 
his children. They were not mere mute chattels, but 
were often asked for their opinion and advice (Genesis 
24). This spirit of the Biblical provisions for treating the 
slaves as human beings were echoed and re-echoed by 
the prophets and the sages, and Dotetod the entire 
body of the Talmudic laws 


While, on the one hand, the non-Jewish slave was con- 
sidered as the property of his master, just as were his 
fields and cattle, on the other hand, however, he was re- 
garded as a human being who was at all times entitled 
to protection. The law of the Bible concerning the kill- 
ing of a slave (Hxod. 22) is not quite clear, but the Rabbis 
interpreted it to mean the death penalty, just the penalty 
that is inflicted for’ the slaying of a free man. 


The Rabbis also endeavored to protect the slave from 
being injured by his master. The Biblical law stated 
only two ‘kinds of injuries for which the non-Jewish 


10 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


slave was to be freed, but the Talmudists extended this 
law to apply to any kind of injury by which the slave had 
lost any one of his limbs. The Jewish jurists always 
sought ways and means for diminishing slavery, and en- 
acted various regulations for the accomplishment of this 
purpose. In doing so they were frequently inconsistent, 
but they preferred rather to run the risk of being logical- 
ly inconsistent than to leave the slave without any pro- 
tection. They also provided most explicitly for the hu- 
mane treatment of the slave and forbade the master to 
humiliate his non-Jewish slave in any manner or form 
(Chapter IT). 


JEWISH SLAVES 


There was actually no Jewish slavery during the Tal- 
mudic period. According to the assertion of the Talmud, 
slavery was abolished about 735 B.C. This, of course, 
is hardly tenable, but there can be no doubt that as early 
as the beginning of the Common Era, Jewish Slavery 
became a thing of the past. The Talmudic laws regard- 
ing Jewish slavery are, therefore, merely theoretical dis- 
cussions. It is, however, interesting to know what were 
the theoretical principles of the Rabbis with regard of the 
protection of the Jewish slaves. 


The Jewish slave, according to the Bible, was just a 
laborer bound over to work for his master a certain num- 
ber of years. He could become a slave either by selling 
himself in order to support his family, or by being sold 
by the order of the court in order to make restitution for 
a theft. The Talmudists'sought to prevent and restrict 
both forms of slavery as well as enacted many regula- 
tions, by which a Jew, if already sold into slavery, could 
obtain his freedom. They also provided for the future of 
the freed slave, in order that, after obtaining his freedom, 
he should have some means for earning a livelihood. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 1 


All these regulations relate to the male slave only, as 
a woman could be sold as a slave only while a minor, and 
she was amply protected by the Talmudic laws as such 
(Chapter III). 


MINORS 


The problem of the minor played but a small role in 
Biblical times. As a matter of fact, no technical term 
for denoting the minor as a class is found anywhere 
in the Bible. The terms for child—‘“Yeled’’—or little one 
—‘Yeled Katan’’—are used merely for describing physi- 
cally immature persons, and do not denote a class of be- 
ings, whose right, duties and responsibilities are different 
from those enjoyed or borne by a mature person. These 
terms are never used in the Bible in connection with 
phases of life that enter into the realm of law and re- 
sponsibility. The simplicity and lack of complexity of 
early Jewish ‘life did not offer sufficient opportunities 
for the development of a clear line of demarcation be- 
tween the minor and the adult. Nor was the organiza- 
tion of society in Biblical times as a whole conducive 
to the formation of a code of laws dealing with the minor. 
The father at that time truly was the head of the family, 
and as such had full control over it during his lifetime. 
The question of the amount of individual freedom to be 
enjoyed by the minor child could have no proper place 
at a time when even the adult son was without any indi- 
vidual rights or powers. Therefore, we do not find any 
special laws in the Bible dealing with the protection of 
the minor. 


A different picture, however, of the minor is presented 
to us Post Biblical Literature. As Jewish life became 
more complex and new institutions and modes of life 
arose that were unknown during the Biblical period, the - 
problem of the minor began to impress itself more and 
more on the Jewish mind. It is then that the minor be- 


12 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


gan to be dealt with as a special class and a permanent 
place in Jewish Jurisprudence was given to him. 


The Talmudists provided ways and means for the sup- 
port of minors in general and for the support of the minor 
daughter after the father’s death in particular, due to the 
fact that the daughter was excluded from sharing in the 
estate of her father. The Rabbis also established the 
Miun institution, which gave to the minor female orphan 
the power of invalidating the marriage contracted for 
her either by her mother or elder brothers. The Rabbis 
also took great pains to restrict the right of the father to 
sell his minor daughter into forced service, as well as 
sought to give her an opportunity to regain her freedom 
after she had been sold. Very important provisions were 
also made in the Talmud for the protection of the prop- 
erty of minor orphans (Ch. IV). 


THE TREATMENT OF WOMEN 


The position of the woman among the Jews was, com- 
paratively, much higher than among all other nations. 
There are no traces anywhere, either in the Bible or the 
Talmud, of the husband’s right to sell, administer cor- 
poral punishment, or to kill his wife, as was the case 
among many ancient peoples. The old Biblical saying 
“put he shall rule over thee” (Gen. 3.16) was interpre- 
ted by the Talmud (Hrub. 100 b; Kid. 2 b. Nedar. 20 b) 
to mean only, that, it was expected of the woman to be 
more retaining and more modest than the man, but not 
that she was to be the slave of her husband. On the 
contrary, the Jewish husband was required to honor his 
wife and to treat her in the most cordial manner, for “‘he 
who has not entered into wedlock, lacks joy, lacks bles- 
sing and lacks good fortune” (Yeb. 62 b.). 


“The relations between the two sexes in Israel’, says 
the Jewish historian Graetz, ‘were entirely free. Boys 
and girls gathered together to dance under the strains 


COLUMBIA UNIVERSITY ORIENTAL STUDIES HS 


of the drum, especially on occasions of weddings and in 
the time of harvests, laughing and singing cheerfully and 
happily” (Graetz, Geschichte der Juden, 2, p. 365). 


The married woman, of course, did not enjoy so much 
freedom as her unmarried sister. She was not, however, 
confined to a harem, as was the case with women of 
other Oriental peoples. She could show herself in all 
the public places freely and undisturbed (Exod. 15.20; 
Deut. 25.11; II Sam. 20.16; Psal. 68.26; Rut. 2.5). 


“Man and woman,” it is said in the Talmud (Kid. 35 a; 
B. Kama 15 a) “are equal before the law.”’ But the social 
status of the woman was by far not equal to that of the 
man (Sotah 11b). The Rabbis therefore sought to pro- 
tect the woman in various needed ways. 


The Rabbis enacted many provisions for the protection 
of the wife as.against her husband. According to Bib- 
lical law the duties of the husband to his wife are three, 
but the Rabbis added seven more. One of the most im- 
portant provisions for the protection of the woman was 
the “‘Ketubah”, a document in the nature of a marriage 
settlement, whereby the woman was to obtain a certain 
amount of money, in case of divorce or in case of the 
death of the husband, in order that she may be provided 
for at the time when she had nobody to support her. 


Although usually the woman was dependent on her 
husband for her support, the latter had no right what- 
ever over the person of his wife. The wife enjoyed com- 
plete freedom, and her husband had no right to compel 
her to change her habits, customs and manners. 


The right to divorce was confined by the Bible exclu- 
sively to the husband. The Rabbis, however, also gave 
the woman the right to claim divorce in many instances, 
compelling her husband in such cases to grant her a bill 
of divorce. 


i+ COLUMBIA UNIVERSITY ORIENTAL STUDIES 


How far the Jewish jurists sought. to protect the 
woman may be especially seen from their regulations 
concerning the “agunah’’, the deserted woman. Adultery 
is a criminal offence punishable by death, according to 
the laws of the Rabbis, based on the Biblical law. Never- 
theless, the Rabbis endeavored to find a way to grant to 
the deserted woman who did not know the whereabouts 
of her husband permission to remarry on the slightest 
evidence of the death of her husband. 


The Rabbis also provided for the protection of the 
widow, especially for the widow debtor as against her 
creditors (Chap. V). 


DEBTORS 


The matter of interest for money borrowed or “tar- 
bith” (increase) for victuals formed an important con- 
sideration in labor conditions of the ancient world. The 
wages, or other compensations, for work done must have 
been so scanty that whenever anything outside of the 
ordinary routine occurred in a laborer’s family life he 
was compelled to resort to a loan to tide him over the 
difficult period and for this loan interest, or increase, was 
exacted. No one but their employer would lend the 
money to these laborers, and there was practically no 
opportunity to earn a surplus wherewith to pay it back. 
Again, it would frequently happen that, as new difficulties 
arose, there would have to be more loans. The natural 
result of such conditions would be that the poor laborer 
would have to work all his life in a vain effort to dis- 
charge a debt which was steadily mounting higher and 
higher. He would, in brief, find himself in a position 
barely distinguishable from slavery, So that the problems 
of curing this evil became insistent. The result of this 
threatened evil was the ordinance. which forbade the 
charging of interest to any Israelite who became impov- 
erished (Lev. 25.35-37), and finally led to the sweeping 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 15 


prohibition not to take interest from any one but an im- 
migrant alien, a foreigner (Deut. 23 30, 21). 


The matter did not, however, end there. This law prac- 
tically acted as an obstacle to the development of all 
commerce, and had the evident result of favoring and 
stimulating agricultural activity. Trade and commerce 
were left to the ‘“nokhri”’, meaning, most probably, the 
Phoenicians and the Tyrians. Isaiah speaks of Tyre as 
destined “to have commerce with all the kingdoms of the 
world” (Isa. 23.17), Ezekiel addresses it as “the merchant 
of peoples for many isles” (Hzek 27.3), while the Book of 
Proverbs and Job both employ the word ‘Kena’ani” 
(Canaanite) in the sense of “merchant.” 


Yet, however discouraging this State policy of. the 
Hebrews was to mercantile enterprise, it was steadily ad- 
hered to nevertheless. ‘Take no interest from an Israel- 
ite’ was the ordinance. Like all severe prohibitive meas- 
ures, there were those who did violate it.. Ezekiel is es- 
pecially bitter against these, holding them up as criminals 
of the deepest dye (Ezek. 18.13). While his denunciation 
may have been considerably intensified by his ultra-en- 
thusiasm for the cause, it nevertheless reflected the gen- 
eral opinion of the people. A man entitled to respect, 
one “who shall sojourn in Thy tabernacle” is he “that 
putteth not out his money on interest” (Psalm 15.5). 
The Book of Proverbs is equally condemnatory of the 
taking of interest, and explicitly states that “He that aug- 
menteth his substance by interest and increase, gath- 
ereth it for him that is gracious to the poor” (Prov. 28. 
8). This spirit of the prophets and wise men was in due 
course of time transmitted to the Scribes and to the 
Rabbis, and exerted a great influence on their interpre- 
tations and decisions rgarding the edict of the taking of 
interest. 


According to the Biblical law, only direct, or express 
interest was prohibited, but the Rabbis prohibited also 


16 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


all other kinds of indirect and even that which may ap- 
pear as interest, even to mere words, the paying of com- 
pliments or the furnishing of any information that would 
not have otherwise been given. Furthermore, according 
to the Talmudic laws, in any case of disobedience to this 
law, it is not only the debtor and the creditor who trans- 
gress the negative injunction relating to the taking of 
usury, but also the surety, the witnesses and even the 
scribes are held responsible for the violation of this in- 
junction. 


According to the Biblical law, the Court, at the request 
of the creditor, was authorized to exact a pledge from 
the debtor to assure the creditor against the eventuality 
of his failing to pay the debt in time. The Rabbis, how- 
ever, enacted many regulations, through very clever 
interpretations of the Biblical law, by means of which the 
taking of a pledge was rendered exceedingly difficult, in 
order not to deprive the poor debtor of his utensils and 
most necessary clothing and food for his household. 


TENANTS 


There are no provisions in the Bible regulating the re- 
lations between landlords and tenants. Most of the Jew- 
ish people during the Biblical period occupied themselves 
with agriculture and most probably lived in huts which 
they themselves had built. With the development of 
commerce and industry, great numbers of the rural pop- 
ulation migrated to the cities and became laborers and 
artisans. Quite naturally, many of those laborers and ar- 
tisans could not afford to build or buy homes for them- 
selves. Thus, the rental system gradually developed and, 
together with it, many hitherto unknown problems be- 
tween landlord and tenant came to the fore. The Rab- 
bis, therefore, found it necessary to enact certain provi- 
sions for the protection of the tenants against the land- 
lords. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES Li 


The Talmudic jurists enacted certain laws whereby 
landlords could not dispossess their tenants without giv- 
ing them due notice of their intention. In the larger 
towns the landlord was required to give the tenant twelve 
months notice prior to the time of the intended termina- 
tion of the lease, because it usually was found difficult 
to obtain other premises during the middle of the year. 
The landlord was also required to provide the house with 
a door, lock, and such other necessary equipments re- 
quiring the work of an artisan. The Rabbis also provided 
for the protection of the tenant in case of the destruc- 
tion of the dwelling. It is interesting to note, however, 
that the Rabbis did not seek to protect the farm tenant 
as much as they sought to protect the house tenant. The 
reason for that seems to be that the tenant of a dwelling 
leased the house not for business but for dwelling purp- 
oses, whereas the farm tenant leased the ’field for busi- 
ness and profit, and does not therefore belong to the 
weak and poor classes that are in need of protection 
(Ch. VII). 


a 


THE POOR 


There was very little need for provision for the pro- 
tection of the poor during the primitive stages of a 
people’s life. The family or clan took care of its weak 
or disabled members. But just as soon as urban con- 
ditions developed and the congestion of population be- 
gan, poverty became a problem and in need of remedy- 
ing. 


Among the Jews, poverty first became a problem dur- 
ing the 9th century B.C. The conquests of Jeroboam II 
in the north of Palestine and those of Uzziah in the 
South resulted not only in the capture of much booty 
and lands, but also in hitherto unknown trade opportun- 
ities and accelerated as well the growth of large and 
powerful commercial classes. The result of this was that 


18 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


while the upper classes revelled in wealth and luxury, the 
great body of the people suffered from want and were 
being exploited by the few. 


These social maladjustments were not altogether lim- 
ited to city life alone. The land owners of the country 
places also grew fat, beyond a doubt, at the expense of 
the small farmers and laborers. 


The prophet Amos at Bethel, in Israel, and the pro- 
phet Isaiah at Jerusalem, in Judah, made entirely clear 
the direct connection between economic oppression and 
want. To their minds, destitution was fundamentally a 
consequence of social and economic exploitation. The 
sources of want they unhesitatingly traced to the unfair 
advantage taken by the strong of the weak members of 
the nation. 


These social and economic evils they denounced quite 
fearlessly. Taking their stand on the basic principle that 
all men are brothers, the children of the self-same God, 
(Mal. 2.10) they attacked, in fiery language, the oppres- 
sion of the poor and the defenceless ones. Amos, Isaiah 
and Micah were especially severe in their indictment of 
social wrong-doing. (Amos. 2.6-8; 4.1; 5.11; 8.4—Isaiah 
1.23; 3.15, 16, 17; 5.7, 8, 20; 10.1-2; 11.4, 5; 16.4, 5—and 
Micah 38.1, 5; -2.1-2). The ethical teachings of the 
prophets subsequently became crystallized in the poor 
laws of Deuteronomy. 24; 26. 


To help the less fortunate members of society was 
mandatory according to the prescriptions of the Penta- 
teuch and not a request. Benevolence is viewed not as 
a matter of grace, but as the imperative duty of the Is- 
raelite. Based on the premise of human equality, based 
on a common divine origin, the Torah (Pentateuch) 
made provisions for the distressed in a multiplicity of 
ways not at all partaking of the nature of alms, but rath- 
er, one may say, of enlightened profit-sharing. There 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 19 


were several ordained measures of aid suited to the re- 
culring seasons, and bearing a relationship to the land 
and its products. Perpetual alienation of ancestral land 
or homestead was forbidden by the Jubilee Law, a mea- 
sure designed to prevent permanent impoverishment of 
the people. If this measure had not been nullified or gen- 
erally disregarded as time went on, its application would 
have gone a long way towards the accomplishing of the 
wished for result. The spontaneous growths of field and 
garden during the Sabbatical year—which was every sev- 
enth year—had to be left free to all comers, with special 
thought and mention of the poor (Ex. 23. 11). Every 
third year a tithe—one-tenth—of all products of the soil 
had to be given to the needy (Deut. 14.28—29. At 
every successive harvest season a corner of the entire 
grain field (Lev. 19.9 and 23.22), the gleanings, and the 
forgotten sheaves, were left to the poor and the stranger; 
and at every ingathering of the fruits of the vineyards 
and the olive-groves the imperfect and 'topmost clusters 
of grapes and olives were reserved for them (Lev. 19. 
10). In connection with the celebration of the three pil- 
grimage festivals (Passover, Weeks and Tabernacles) 
at which time attendance at the capital was required of 
all families (and notably of the males), it was ordained 
that the stranger, the widow and the orphan be invited 
to share the food of the pilgrim (Deut. 16. 11-14). 


The entire Bible vibrates and tingles with a quick and 
burning sympathy for the poor and the handicapped. The 
Biblical period did not, however, develop a comprehen- 
sive system for the protection of the poor. It made char- 
ity a human obligation, incumbent on every person, but 
the extent of most of the benevolences enjoined was left 
to the conscience and the generosity of each individual. 


The Rabbis, however, realized that it was not sufficient 
merely to preach high ideals, but that it was also neces- 
sary to establish definite laws whereby those who were 


20 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


able to give, would be compelled to give to the poor and 
thus the community was enjoined to render assistance to 
its dependent ones. Here, as elsewhere, they realized 
fully that practical legislation must content itself with 
accomplishing that which it is possible to accomplish 
under the given circumstances. Thus we find that what- 
ever lofty ideals about spontaneous charity they ex- 
pressed in their Agaddic utterances, and they have many 
such thoughts, in their legal enactments they confined 
themselves to what was considered practical. They 
aimed to secure to the poor the help that they needed as 
well as to impress upon the rich the obligation that rest- 
ed upon them. They tried to give to charity its full 
Hebrew connotation, Zedakah, namely, Justice, regard 
for the rights of the poor. This idea of Justice in char- 
ity, demanded that charity be collected only from those 
who were able to give it, and distributed only among 
those who really were in need of it. 


The Rabbis, therefore, regulated by law, the collection 
and distribution of charity. They ordained by law those 
classes and individuals who must contribute and in what 
proportion to their incomes that contribution is to be: 
They also determined who were to be the recipients of 
this charity and how the distribution was to be adminis- 
tered (Ch. VIII). They permitted only one exception to 
the rules they established regarding investigation. A 
hungry person must be fed without any investigation 
whatever (according to the opinion of Rabbi Judah which 
is supported by the Beraita (B. Batra 9a). 


The Rabbinic laws and regulations concerning charity 
and relief, as those bearing on other aspects of life, had 
for their basis the legislation, the ideals and the stan- 
dards established by the Bible. Upon these latter, the 
Rabbis of the Talmud built the superstructure of their 
own teachings. The decisions of the learned bodies of 
the Palestinian and Babylonian academies and the opin- 


COLUMBIA UNIVERSITY ORIENTAL STUDIES £4! 


ions of individual teachers of distinction recorded in the 
Talmud (the former having the force of law and the lat- 
ter that of revered instruction and opinion); the enact- 
ments of local and district councils, carrying authority 
in the territories over which they exercised jurisdiction— 
all these were in the nature not of supersession of the 
Biblical doctrine, but rather of elaboration and supple- 
mentation. It was in fact, the rich reservoir of human- 
itarian and ethical ordinances and the sentiment crys- 
tallized during centuries of unparalleled outer and inner 
experiences preceding the Talmudic era, that supplied 
both the momentum and the plan for the unbroken chain 
of philanthropic ideals and endeavors, forged during the 
Talmudic period. The very pre-eminence of the Biblical 
doctrine insured its permanence in the Rabbinical era. 


The supreme authority vested in the law and its ac- 
credited elaborations, tended to shape all legislation into 
fixed molds, and to circumscribe freedom of wider inter- 
pretations so far as the general outlines of personal and 
communal procedure were concerned. Real rigidity did 
not, however, set in until the actual codification of the 
Talmud (C. 500 A.D.). Even then, eminent teachers 
permitted themselves to differ now and again from the 
traditional rulings. And, side by side with the legalistic 
material there was also issued by the sages a mass of in- 
structions which took the form of tales and aphorisms. 
Life, with its demands and its experience, ever indepen- 
dent of previously created molds, created its own norms 
as it needed them (Ephraim Frish, An Historical Survey 
of Jewish Philanthropy—pp. 1-47). 


We shall now proceed to the Talmudic laws concern- 
ing all the weak elements treated in our introduction, and 
show how the Rabbis always endeavored to protect them 
against the stronger classes. We shall consider each law 
or enactment separately, trace its origin in the Bible and 
point out the various elaborations and interpretations 


22 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


which were made by the Talmudic jurists with the object 
of improving the position and the standing of the lowly 
and the weak in society. 


I—THE STATUS OF FREE LABORERS 
1. Privileges of the Hired Laborer and Artisan. 


There were four kinds of free laborers during the Tal- 
mudic period: (1) The “‘sakir’—the hired laborer, who 
was employed for a definite period of time but not for 
any particular kind of work; (2) The “poel’—the arti- 
san, who was employed both for a definite period and for 
a definite piece of work; (3) The “Uman”—the skilled 
artisan who undertook to do a certain piece of work; 
and, (4) The “Kablan’”—a contractor who may, or may 
not, be a skilled laborer himself but who undertook to 
complete a certain job either by himself or through 
others. The Talmudic law endeavored to extend its pro- 
tection to all these laborers, but sought to protect es- 
pecially the hired laborer and the artisan. 


(a) Breaking a Contract. 


A contract became operative when the work under- 
taken was started, and was binding upon the employer, 
who could not thereafter discontinue the work, even if 
by doing so he caused no loss in any manner to the em- 
ployee, i.e., even if the employee had lost no opportunity 
thereby for obtaining other work. If the employer broke 
the contract he was obliged to pay to the employee the 
full amount agreed upon for the work. 


With the employee, however, it was different. He could 
drop the work at any time without feeling bound to give 
any valid reason for his action. The employee was priv- 
ileged to quit his work at any time even if the employer 
was not in a position to find at that time any one else to 
continue or to finish the work that had been started ‘by 
the worker. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 23 


According to the Talmudic Law no contract could be 
made on futures, because the things contracted for are 
not yet in existence. A contract for future labor was not 
binding upon the laborer. However, if the contract for 
future labor has been entered into, though it could not 
hold the laborer, it was enforceable upon the employer. 
This alone amply demonstrates that the Rabbis were pre- 
pared to grant special privileges to the worker. 


The special privilege granted the employee to break a 
contract, was not without its moral justification. The 
obligation of the employee to work for a certain time de- 
prived him of his freedom, and placed him in a position 
of temporary servitude. To justify this right of an em- 
ployee to break his contract the Talmud cited the Bibli- 
cal statement ascribed to God ‘For unto Me are the chil- 
dren of Israel servants” (Leviticus 25.55), adding: “and 
not servants to servants” (Baba Kama 116 a; Kidushin 
22b). The Rabbis sought to protect the personal free- 
dom of the hired laborer and the artisan and therefore 
granted to them a privilege which was not extended to 
the skilled laborer and contractor. 


The skilled laborer or contractor who agreed to com- 
plete a definite piece of work without any particular re- 
gard to time, did not thereby sell his freedom, and, hence, 
was not permitted to abrogate his agreements with his 
employer (B. Kama 99b). 


(b) Taking an Oath. 


According to the Biblical law a man who was sued 
for withholding money or valuables, could establish his 
innocence in the absence of evidence by taking an oath 
upholding his plea. This law, however, according to the 
Talmud, was not to be applied in the case of an employer 
who was sued for withholding the wages of a hired la- 
borer or an artisan. In this particular case, the Talmud 
voids the Biblical law and takes the privilege of the oath 


24 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


away from the defendant and gives it to the plaintiff. 
The employee who affirmed his claim by oath was award- 
ed the payment of his wages (Shebuoth 45a). 


The explanation of this privilege, as given in the Tal- 
mud, was that the employer with much other pressing 
business on hand was apt to forget about the payment 
due to the employee, whereas the employee could not but 
remember whether or not he had already received his 
wages (Baba Mezia 112b). The underlying motive, 
however, seems to have been the fact that the employee 
was dependent for his livelihood solely on his wages and 
it was therefore considered proper that he should re- 
ceive, under oath, his pay, although ordinarily the de- 
fendant had the privilege of taking this oath in order 
to free himself from debt. 


(c) Exemption from Liability for Damages. 


The Talmud absolved the hired laborer from the re- 
sponsibility of damages for an article spoiled by him ac- 
cidentally in the process of labor. He was required, how- 
ever, to take an oath that the damage had been caused 
by accident or error, and not by wilful negligence. This 
was a reform intended primarily for the protection of the 
laborer. Logically it would appear that if an article is 
broken or spoiled in the process of labor, the responsibil- 
ity of the laborer should be as great as though the arti- 
cle had been stolen or lost, in which case the hired la- 
borer is obliged to pay for it. But the spoiling of an ar- 
ticle in the process of legitimate handling may occur 
quite frequently, and, in order to protect the laborer, 
against loss, the Talmud felt bound to consider it like 
any other unlooked for accident, such as the death or 
injury of an animal while at work, in which case the la- 
borer would not be held responsible for the loss. This 
is, aS a matter of course, an inconsistency. The Talmud 
itself states that if the laborer were required to pay for 
an article spoiled in the process of handling, no one 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 2) 


would undertake to do any work for a stranger. It must, 
therefore, follow that such occurrences might be ex- 
pected rather frequently. Nevertheless, the Talmud 
places such accidents in the category of catastrophes or 
unusual occurrences, and frees the laborer from respon- 
sibility and the payment of damages. The inconsistency 
is ignored by the Talmud for the moral motive in protect- 
ing the laborer (B. Mezia 82a). 


2. Regulations Regarding Time, Wages and 
Payment. 
(a) Time. 

The hours at which the day’s work was expected to 
start and to finish were determined by local practice (B. 
Mezia 83a). The employer could not compel his la- 
borers to begin his work earlier or to work any later than 
the accepted time of the locality in which the work was 
done, even though he paid them more than the usual 
wage, as long as he did not stipulate his expectation of 
larger hours of labor. 


It is implied in this ordinance that if the employer had 
agreed to give them the increase it was with the view of 
having them perform better work, and not for the pur- 
pose of having them work longer hours than is custom- 
ary. 

The hired laborer was permitted to deduct from his 
working hours the time which he spent in walking from 
his home to his place of work. This provision was made 
in order that he be not compelled to leave his home be- 
fore the break of day, the working day usually beginning 
at sunrise. He could not, however, deduct from his 
working hours the time required for returning from his 
work to his home (B. Mezia 83a). Nor may the laborer 
‘ be employed after his day’s work by somebody else in 
the evenings or at nights, because by doing so he would 
exhaust his physical capacity for work, and would ne- 


26 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


glect his work on the following day, and so cause his 
master a loss by it (Tosefta B. Mezia Ed. Zuckerman- 
del 381.25). The duty of the laborer was to devote all 
of his working time, excepting the time required for 
eating and for necessary rest, to his work (Kidushin 
33a). In the final analysis it will be found that the pro- 
tection of the laborer by the Talmud was not intended 
to permit the employee to injure his employer and his 
legitimate interests. 


(b) Wages. 


In the absence of any agreement between employer 
and employee regarding wages, the employer was obliged 
to pay the worker according to the accepted wage scale 
of the locality. The employer who authorized an agent 
to hire workingmen for a stipulated wage, was expected 
to pay them the wage agreed upon by his agent, even | 
though this wage was higher than the one which the lat-/ 
ter has been authorized to offer them, provided, however, 
that the employees were able to convince the employer 
that the wages offered were not excessive for the ser- 
vices rendered (Baba Mezia 7a). This ordinance was 
enacted solely for the protection of the employee, for in 
no case, except that concerning employees and employ- 
ers, was one required to fulfill the unauthorized promises 
of his agent. If, again, the value of the work done was 
estimated to be less than the wage promised by the 
agent, the master was required to pay to the employee 
only at the rate of the established wage of the locality, 
and the employee was entitled to demand the balance 
from the agent. 


(c) Payment. 


The Talmud lays particular stress on the Biblical law 
which prohibited the delay of payment of wages to the 
employee. If the employee had been working by the > 
hour during the day he was entitled to receive his pay 


COLUMBIA UNIVERSITY ORIENTAL STUDIES Zi 


during that day. If he had worked by the hour during 
the night he was to be paid that night. In the case of 
one employed for a week, month or year, if his contract 
chanced to expire during the day, he was entitled to his 
pay on that very day; if the contract expired at night, he 
was to be paid on that night. The Biblical law prohibited 
the delay of payment until after sundown (Lev. 19.138). 
For people ordinarily work during the day, and the Bib- 
lical provision was intended for the day laborer. The 
Talmudic law, however, added also the above provision 
for the protection of the night laborer (B. Mezia 110a). 
The Talmud realized how eager the wage earner was 
for his wage, and emphasized the fact that he who wil- 
fully retained the wage of the employee was as culpable 
as if he had deprived him of his life (B. Mezia 112a). 


If an employee had come to the house of an employer 
to demand his wages, and was attacked by the employ- 
er’s dog, the employer was held to be responsible, even if 
the employee had entered the house of his employer 
without permission, for the employee had a right to come 
and demand his wage if the employer could not be 
reached outside of his home (B. Kama 33a). It is very 
likely that this law was also extended so as to apply to all 
creditors who came to the houses of their debtors to de- 
mand their debt, but the very fact that the Talmud cited 
this law only in the case of an employee, shows the earn- 
est desire on the part of the Talmudists to assist the em- 
ployee to obtain his earnings from the employer. 


The Talmud also ordered the employer to pay the em- 
ployee in cash and not in kind, for the employee may 
sometime experience some difficulty in exchanging these 
products for cash, and may also lose by the exchange. 
If, however, the employee had already taken from the 
employer certain products on account, the employer was 
entitled to deduct the value of the products from the 
wages due to the employee (Baba Mez. 118a). 


28 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


If one has been hired to go to a certain place and bring 
back a certain article and he went there but did not find 
that article or object, he was entitled to full pay for his 
services even though his errand had not been completed. 
Likewise, if one hired a laborer by the day to do a cer- 
tain piece of work and the laborer completed the work 
in less than a day, the employer may order him to do 
other work for the rest of the day, provided, however, 
that the new work offered were similar to, or easier than, 
the work for which he had originally been hired, but 
he could not order the employee to perform a more dif- 
ficult task. If no other suitable work for the laborer was 
available the employer was obliged to pay for the entire 
day (Tosefta B. Mezia VII, 6). In such a case, how- 
ever, inquiries were made as to how much less a laborer 
would have been willing to take per day if required to 
perform no work at all than if he was expected to per- 
form his usual day’s labor (B. Mezia 76a). 


3. The Legal Difference Between the Hired Laborer 
and the Artisan, and Between a Contractor 
and a Skilled Laborer. 


(a) Contractor. 


The privilege of disregarding a contract at any time 
given to the hired laborer or artisan was not extended 
to the contractor. The contract was considered to be 
in effect: 


1. When the contractor began the work, if the work 
were to be done in the house of the employer; 


2. When the worker took the necessary materials 
home, in case the work was to be done in his own home, 
or 


3. If the contractor took from the employer any money 
on account. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 29 


In all these cases, the contract is as binding upon the 
contractor as upon the employer, This law, although 
not stated expressly in the Talmud, is derived by the Tal- 
mudic commentators from other laws which make it 
deducible (Baba Mezia 48a, Tosfoth, beginning Veho). 
Of course, the skilled laborer could disregard the con- 
tract if there was a valid reason for doing so as for in- 
stance, if the employer had agreed to pay for the work 
in instalments during the process of work and did not 
meet these instalments when due in accordance with his 
agreement. The employer may also disregard the agree- 
ment if the contractor did not finish the work within the 
time agreed upon. The contractor, however, was not 
permitted to break his contract without sufficient reason 
as could the hired laborer or the artisan. 


(b) Skilled Laborer. 


The Talmud is very severe with the skilled laborer who 
spoiled an article by negligence in the process of handling 
same. Teachers, city physicians or other professionals 
were subject to dismissal without any notice if they 
spoiled anything through negligence. The following 
story is related in the Talmud: 

Runia, the gardener of Rabbi Abina, spoiled the or- 
chard of his master, and was dismissed from service. The 
gardener complained before Rabba, but the latter told 
him that he had received his just deserts. “But he gave 
me no notice!” protested the gardener. ‘He is not re- 
quired to give you any notice,” was the answer of Rabba 
(B. Mezia 109a). 


In one certain respect, the Talmud did endeavor to 
protect the interests of the skilled laborer, as strongly as 
those of the hired laborer or the artisan. The Talmudic 
law ordered the employer to pay to the skilled laborer his 
earnings on time, and warned against any delay. The 
payment was due, according to the Talmud, as soon as 
the work was completed and the product delivered to the 


30 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


employer (Baba Mezia 112a), and the latter is ordered 
to pay to the laborer within twenty-four hours the wages 
agreed upon. 


Generally speaking, the “Rights of Labor,” according 
to the Talmudic law, are in reality the rights of the la- 
borer. Labor is protected by the Talmud in every pos- 
sible respect. Many of the Rabbis at the Talmudic peri- 
od were themselves farmers, artisans and laborers (B. 
Mezia 48a). They realized that if the laborer sold his 
time it was because he was compelled to do so in order 
to avoid starvation, and they therefore, enacted many 
special laws for his protection. 


II—NON-JEWISH SLAVES 
1. The Right of the Slave in the Talmud. 


The non-Jewish slave was not, according to the Tal- 
mud, on the same level with the Jewish slave. The former 
was considered as part of the property of his master, 
whereas the latter was considered as merely a servant 
who was obliged to serve his master for a term of years. 
The non-Jewish slave enjoyed no property rights (Baba 
Kama 27a; B. Mezia 96a). Thus, if he were injured, the 
compensation for his injury was awarded not to the 
slave but to the master (Mishnah Baba K. 87b). 


The non-Jewish slave could not make a contract, or 
be a witness in court (Mishnah Baba Kama 14b). His 
master had the right to marry him to any one of his 
women slaves (Git. 40b). He also could pawn him and 
convey him to others, just as was the practice among 
the Greeks and the Romans, but the master had no 
jurisdiction over the life of his slave (Exodus 21.20). 


Logically, if the non-Jewish slave was considered the 
property of his master he should have been treated as a 
mere chattel. This, in fact, was the attitude of many 


COLUMBIA UNIVERSITY ORIENTAL STUDIES a 


ancient nations toward their slaves. The attitude of the 
Jewish jurists, however, was different. While, on the one 
hand, the slave was considered as the property of his 
master, just as his cattle and other goods, on the other 
hand, however, he was considered as a human being, 
who was entitled to full human protection. This ap- 
parently is an inconsistency, but the Jewish jurists pre- 
ferred rather to undergo the risk of logical inconsistency 
than to leave the slave without any protection. 


The ordinances for the protection of the slave by the 
Talmudic law is as a matter of course based upon the 
Mosaic law. The Biblical law explicitly states that: 
“if a man smite his servant or his maid with a rod, and 
he die under his hand, it shall be surely avenged... 
And if a man smite the eye of his servant, or the eye 
of his maid that it perish, he shall let him go free for 
the sake of his eye. And if he strike out his man ser- 
vant’s tooth, or his maid-servant’s tooth, he shall let 
him go free for the sake of his tooth’ (Exodus 21.20, 
PAN 4 AT A 

These laws were enacted in order that the master 
May not act cruelly towards his slave. The Rabbis, 
however, went even much further in their efforts to 
protect this submerged class of beings. 


According to the Bible, the murder of a slave by a 
master had to be avenged, but there was no definite 
provision made as to what that vengeance ought to be. 
The Talmudic jurists interpreted this vengeance to mean 
punishment by death. The Rabbis considered the slave 
as a full-fledged human being, and, consequently, the 
master who killed his slave was to be regarded as 
any other murderer and dealt with accordingly (Mekilta 
Exod. 21. 2; Sanhedrin 52 b). 


The Rabbis also provided, that the witnesses who gave 
false testimony in court against a slave with the inten- 
tion of inflicting a death penalty on him, were them- 


32 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


selves to be put to death, just as if they had given any 
ather false testimony that might inflict the death penalty 
upon a free man, a crime that was punishable by death 
(B. Kama 88a). 


According to the Biblical law, if one killed a person 
accidentally, he was to be banished to the cities of refuge. 
The Rabbis extended this law also to one who accident- 
ally had killed a slave (Makkot 8b). 


The Biblical law enumerated only two kinds of injury 
for which the slave was to be freed; namely, if the master 
had struck out an eye or a tooth of the slave. The 
Rabbis extended this law to any kind of injury by which 
the slave had lost any of his members enumerating 
twenty-four of these members (Yerushalmi Gitt. 2. 
IV, 4). According to the Biblical law, if the injury of 
the slave by his master was accidental, the slave was 
not entitled to his freedom, but the Talmudic law held 
that the slave was to be freed even for unintentional 
injuries. Moreover, if the master was a physician and 
caused the loss of a member to his slave while operating 
on him with the intention of curing him of any disease, 
the slave, according to the Talmudic law, was to be 
freed (Kidushin 24 b). 


Among the ancient peoples it was frequently cus- 
tomary for the masters to castrate their slaves and use 
them thereafter as eunuchs. Castration was Biblically 
prohibited. The Rabbis went a step further, enacting 
the forfeiture of the slave if castrated by his master 
(Kidushin 25 a). 


To what extent the Rabbis sought the protection 
of the slave from possible injuries by his master, may be 
seen from the following ordinance: According to the 
Bible if the master caused the loss of an eye or tooth 
to his slave, he was compelled to grant him freedom. 
Logically, this implied that the eye or tooth which was 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 33 


destroyed had been a functioning member and converse- 
ly, one would suppose that the loss or destruction of an 
eye or tooth which had already ceased to function prop- 
erly would not entitle the slave to his consequent free- 
dom. This was not so, however. According to the Talmudic 
law, a slave who sustained an injury through the act 
of his master, was entitled to his freedom, even though 
this injury affected a part which had already become im- 
perfect, as long as it was not entirely non-functioning 
(T.B.B.9; Kid. 24b). 


2. How the Rabbis Sought to Diminish the Practice 
of Slavery. 


As has already been stated, the Jewish Rabbis felt an 
aversion to the institution of slavery. They realized 
however that time was not yet ripe for its entire abolition. 
They endeavored, therefore, to diminish, as far as pos- 
sible, the evils of the existing slavery and to prevent 
its further extension. In order to accomplish this aim, 
the Rabbis sought continually for some clue in the Bible 
by means of which they could derive new laws in favor 
of the slave. Due to the elasticity of the Biblical style, 
the Rabbis were able to derive from the terse Biblical 
phrases many new laws for the protection of the slave, 
as a result of which slavery among the Jews was gradu- 
ally regulated almost out of existence. 


A non-Jewish slave was either born a slave, descended 
from a slave parentage, or had been purchased by his 
master from neighboring peoples (Sanhedrin 56a; 85b). 
Usually, in time of war the conqueror sold the con- 
quered ones as slaves. Some people, again, were sold 
aS a punishment for some crime. The sale of slaves 
usually took place at a special slave market. 


To diminish slave trade among ‘the Jews, the Rabbis 
enacted a law, prohibiting a resident of Palestine from 
selling a slave to a resident of a foreign country, even 


34 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


though the buyer was a Jew (Gittin 43b). As the slave 
trade was mostly a matter of international commerce, 
this provision limited to a great extent the slave trade 
among the Jews of Palestine. The Jews bought only 
as many slaves as they needed for their own use and not 
for sale. 


A slave could obtain his freedom in the following man- 
ner: 


(1) By the loss of one of his limbs caused by the act 
of his master. 

(2) By obtaining a Bill of Freedom from his master; 
and 

(3) By paying to the master a certain sum for his 
ransom. 


The question then arises, what means did a slave 
have for obtaining money for his ransom if he were not 
permitted to own any property and if whatever wealth 
be possessed belonged to his master and not himself. 


According to the Talmudic law, provision was made 
that if one who was interested in the freedom of any 
certain slave had paid directly to the master the sum 
needed for the slave’s ransom, or if one gave to the slave 
as a gift a certain sum of money stating expressly that 
this was to be used for his ransom, the gift so given 
would not belong to the master, but remained the prop- 
erty of the slave who may use it for this particular pur- 
pose (Kidushin 22b; 23). 


If the master had expressed in his last moments his 
wish to free his slave, and had died before he had time 
to perform the necessary formalities to make his wish 
legally binding on his children, the heirs were obliged 
to grant this slave his freedom (Gittin 40a). Further- 
more, if one had two slaves of the same name and had 
ordered before his death the freedom of one of them, 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 35 


and did not state expressly which one of the two he 
meant the both of them were to be freed. In order, 
however, to do justice to the heirs, the law provided 
that both freed slaves should pay to the heirs the value 
of one of them (Tosefta B. ‘Batra XI. 18). 


According to the law, one may change his will or 
annul it entirely at any time he wished. But if one 
granted freedom to his slave in his will, he was never 
permitted to change this provision and the slave was to 
be freed immediately, even though the master was still 
alive (Gittin 9 a). 


If one, in the belief that he was going to die, con- 
veyed his property to his slave, the slave was to be 
freed. The reason for this was, that a slave could own 
no property, and, hence, if the master willed his property 
to the slave his intention apparently was to free the 
Slave, in order to enable him to inherit this property. If 
the master recovered after making his will he may 
annul the property gift that had been made to the slave 
in error, but he was not permitted to annul the freedom 
which he had in this way indirectly bestowed upon his 
slave (Peah III.5; Gittin 9a;). For the same reason, a 
master, after bestowing a gift of property upon his slave, 
and by so doing, giving him his freedom, was not per- 
mitted to retract later on this gift of property and free- 
dom and to set claim that he was not serious in his in- 
tention (Gittin 8b; 42a; B. Batra 11a). 


Likewise, the slave was entitled to freedom if his 
master had married him to a free woman, or if he had 
ordered him to put phylacteries on his head, or to per- 
form any other religious ceremony which a slave was 
not expected to practice. By these acts the master 
implied that he had freed his slave (Gittin 39b; 40a). 


According to the Biblical ordinance, a slave who 
escaped from a non-Jewish master to a Jew was not to 


36 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


be returned into servitude. But the Rabbis extended this 
privilege also to the slave who had escaped from a Jewish 
master living in any foreign country to Palestine. If one 
sold his slave to a non-Jew he was obliged to pay the 
amount of his ransom and let the slave go free. Like- 
wise, if one mortgaged his slave, to a Gentile he was 
obliged to pay his debt to’ the creditor, and set his slave 
free. If a slave has been captured in war and sub- 
sequently managed to escape, he was to go free (Gittin 
37 a). A slave who escaped from abroad to Palestine 
was not to be returned to servitude (Gittin 45a). A slave 
who was sold from Palestine into some foreign country 
was to be freed, and the buyer was obliged to stand the 
loss (Gittin 44 b; 45 a). A slave also had the right to 
refuse following his master from Palestine to any foreign 
country. In a case such as this, he was ‘permitted to stay 
where he was and became free (Ketubot 110b). 


That the Rabbis, in ruling as they did in the above 
mentioned and similar cases, were led by a religious 
motive in addition to a humanitarian one, is not alto- 
gether improbable. Doubtless, the Rabbis considered 
it religiously improper to sell a slave from Palestine into 
a foreign land, or to sell a slave to a non-Jew. But the 
religious motive in itself would not have been sufficient 
reason for ordering the master to free his slave following 
upon such a sale. The Rabbis could have ordered the 
sale annulled, and permit the slave to stay where he was. 
But the Jewish jurists were supremely anxious to find 
means for diminishing slavery, and did not permit any 
opportunity to go by for the accomplishment of this end. 


The following instance will illustrate how far the 
Rabbis sought to defend the slave, and to assist him in 
gaining his freedom: 


A question arose among the Rabbis in the case of 
a slave who had acquired title to half of his freedom (as 
for example, a slave held in joint ownership by two 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 37 


masters and had been freed by one). The school of 
Hillel was at first inclined to rule that the half-slave 
work successively one day for his master and one 
day for himself. This arrangement would be just 
according to the civil law, for to own a slave means to 
enjoy the product of his labor. In this particular case, 
therefore, where there were two owners of the slave, 
the master as well as the slave himself, the product of 
the slave’s labor should be equally divided. 


The School of Shammai, however, pointed to the fact 
that such a arrangement would indeed provide well for 
the master but would make but poor provision for the 
slave. The latter would be much wronged by such an 
arrangement, because it failed to give him any definite 
status in society. For as a result of this arrangement he 
would have neither the advantages of a freeman nor the 
privileges of the slave. He would not be permitted, to 
take an instance, to marry a slave, nor would he acquire 
the right of marrying a free woman. In this way he 
would be deprived of the inalienable right of founding 
a family. In consideration of these arguments, the school 
of Hillel agreed with the school of Shammai that the 
master be compelled to give the slave a bill of freedom, 
and receive from the slave a note for the amount which 
would be due to his shares (Mishnah Gittin 41 a; Eduyot 
I, 13). 


The Rabbis, in this instance, took cognizance of the 
fact that according to the strict application of the law, 
his partnership would give the master the right to con- 
tinue his partial ownership in the slave and to share the 
products of the slave’s labor indefinitely. They decided, 
however, that the master be compelled to consider the 
slave as a human being in possession of certain defined 
inalienable rights, so that for the sake of the slave’s well- 
being, the master must forego his undisputed right of 
continuous partnership and grant the slave his freedom. 


38 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


It is also interesting to note that the Talmudic law 
granted to the freed slave all the religious and civil priv- 
ileges and immunities that the Jews of that time en- 
joyed (Gittin 43 b). Even a woman from the best Jewish 
families was permitted to marry a freed slave (Kidushin 
72b). A freed slave was expected to observe the religious 
duties of the Jew, even those from which he was freed 
in his state of slavery. The Rabbis sought to have the 
slave consider himself as one of the community and 
to forget entirely his previous state of servitude (Sifra 
B. 23.42). 


3. The Treatment of the Slave. 


It was the duty of the master to circumcise the slave 
and to make him enter into the covenant of Abraham. 
This was performed not by force, but by moral suasion 
and for the benefit of the slave. The Jews were not as a 
rule anxious to force their religion upon others (Yebamot 
47 b). But it was to the interest of the slave to enter 
into the covenant of Abraham. The standing of the slave 
rose considerably by this action alone, as he was hence- 
forth considered as a member of the family. Besides, 
this act usually resulted in more intimate relations be- 
tween him and his master (Yeba. 48a). 


The Rabbinic law does not make it obligatory upon the 
master to feed his slave. The Rabbis probably consid- 
ered such a law superfluous, for the slave was the proper- 
ty of his master, and no sensible man would permit his 
property to deteriorate and thereby impair its value. But 
there existed a moral law which obliged the master to 
provide the slave with proper food and other necessities 
of life (B Kama Jerushalmi VIII, 4). 


The law provided, however, that in time of famine or 
dearth as a result of a bad crop, the master was obliged 
to permit the slave to work for his own benefit, if he did 
not wish to feed him. The Rabbis realized that under 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 39 


such circumstances the master may not care to feed 
his slave even if by so doing he did impair his value, 
and they therefore compelled the master to permit his 
slave to shift for himself in this emergency. If the slave 
worked for his master, the latter was obliged to pay him 
for his work. This practically meant that the master 
was obliged to grant his slave temporary freedom (Gittiv 
1): 


According to the civil law the master had a right to 
compel his slave to perform the most difficult labor. The 
moral law, however, required of the master to be merciful 
to his slave, and not overwork him. The moral law also 
required the master to feed the slave the same kind of 
food and drink of which he himself partook. The master 
was also morally prohibited from insulting the slave, or 
to humiliate him in any way (Niddah 47b). 


III—JEWISH SLAVES 


1. How the Rabbis Sought the Freedom of the 
Jewish Slave. 


There were actually no Jewish slaves during the Tal- 
mudic period. Jewish slavery was not uncommon during 
the period of the first commonwealth, and also for a short 
period after the return of the Jews from Babylonian exile 
(Jeremiah 34; Nehemiah 5). Later it became rarer and 
rarer, so that the authorities of the Talmud were of the 
opinion that it became obsolete as early as 735 B. C.. 
when the Jubilee was abolished (Arakin 29a, 32b; Kid. 
69a). According to the Biblical law, a Jew who was 
sold into slavery was to be freed in the seventh year. If, 
however, the slave did not care to become free but pre- 
ferred to remain in servitude, he was allowed to do so 
and to serve his master until the year of the Jubilee, 
when he was to be freed, even if against his wish, accord- 
ing to the Rabbis who so interpreted the word “leolom,” 


40 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


for ever (Exod. 21. 1-6). With the abolition of the Jubilee, 
Jewish slavery bade fair to become a permanent institu- 
tion. This was, of course, altogether opposed to the Jew- 
ish spirit, and the sages decided, therefore, that Jewish 
slavery should be abolished, together with the abolition 
of the Jubilee. 


The Talmudic laws regarding Jewish slavery are, 
therefore, merely a matter of theory. Nevertheless, it 
is entirely interesting for us to know exactly what were 
the theoretical principles of the Rabbis for the protection 
of the Jewish slaves. 


The Biblical permission given to the poor Jew to sell 
himself into slavery was much restricted by the Rabbis, 
in order to diminish slavery as far as possible. Accord- 
ing to the Talmudic law one was not permitted to sell 
himself as a slave in order to keep his property, real or 
personal, to purchase with it merchandise, necessary im- 
plements, or even to pay a debt with. A Jew was per- 
mitted to sell himself only in order to release himself 
or his family from starvation and even then only when 
he had nothing else left to sell excepting himself (Kid- 
ushin 20a; Arakin 30b). 


' According to the Biblical law, a court of law was per- 
mitted to sell a thief as a slave in order to pay for his 
theft. The Rabbis, however, wanted to restrict this 
power of the courts, and enacted a law, which permitted 
the court to sell:a thief only if he was unable to pay 
the value of the stolen article. If he was able to make 
restitution but was unable to pay double, as the Biblical 
law required, the thief was not to be sold (Kidushin 18a). 
The Rabbis also prohibited the courts from selling the 
thief to a non-Jew of a foreign land. Furthermore, the 
Rabbis permitted the court to sell a thief only when his 
value as a slave was equal to the amount of the theft 
(Kidushin 18a). By this latter provision the Rabbis 
rendered the selling of a thief by court order almost 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 4] 


impossible, for it was very difficult to find a case wherein 
the value of the thief as a slave should equal exactly 
the value of the article stolen by him. The law also 
entirely prohibited the selling of a woman for theft 
(Sotah 23b). 


According to the Bible, if a slave refused to go free in 
his seventh year, he should remain a slave forever 
(Exod. 21. 5-6). But the Rabbis interpreted it to say 
that this meant only until the year of the Jubilee, when 
the slave would be freed automatically (Kidushin 15 a). 


There were three ways by which a Jewish slave could 
obtain his freedom: 


(1) On the seventh year. 
(2) In the year of the Jubilee; and 
(3) By ransom. 


It would seem from the Biblical ordinances that the 
privilege of freeing himself through ransom was granted 
only to the slave who had been sold to a non-Jew. But 
the Talmudic law granted the same privilege also to the 
slave of a Jew (Kidushin 21). The slave is obliged to 
pay for his freedom, just as much as was his least value 
at any time. If, for instance, the value of the slave had 
increased since his selling, he was expected to pay only 
the sum that his master had paid for him and no more. 
On the other hand, if his value had since diminished, he 
was to pay to the master only the sum of his present 
value (Kidushin 20b; Arakin 30 b). The money for his 
ransom usually was provided by the slave’s friends or 
relatives, or by his wife and children, which latter rela- 
tives the master was obliged to feed and clothe, but 
whose earnings belonged to themselves. 


If the master had died without leaving any sons, the 
slave was to become free. The slave was not obliged to 
serve the daughters of his master, or brothers of the 


42 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


master, to say nothing about other heirs. If the master 
was a non-Jew, the slave was freed in case of the 
master’s death, even if he left male children (Kidushin 
17 b; B.Mezia 71a). All these laws bear evidence of the 
fact that the Rabbis always sought for an opportunity to 
free the Jewish slave. 


2. The Legal Standing of the Jewish Slave. 


The legal position of the Jewish slave was the same 
as that of the hired laborer or the artisan. The slave 
retained all his civil rights. The master had no right 
whatever over the person of the slave, nor could he sell 
him to anyone else (Arakin 28 a). Anything given to the 
slave, or found by him, or inherited by him, or earned by 
his wife and children, belonged to him and not to his 
master (B.Mezia 12 a). The slave may sue his master 
for injury, for mistreatment, or for insult, and obtain a 
verdict against his master (Baba Kama 87 a). The 
master had only a claim upon the working capacity of 
the slave. He could not, however, compel him to per- 
form any degrading task (Sifra 25, 109). 


The master was obliged to provide the wife and the 
children of the Jewish slave with food and other neces- 
sities even though they were not slaves, and their earn- 
ings consequently belonged to themselves (Kidushin 20 
a). 


According to the Biblical law, the master was permit- 
ted to give into marriage a non-Jewish maiden to his 
Jewish slave, and their children belonged to the master, 
and were considered as his property even as non-Jewish 
slaves were (Exodus 21.4). This ruling was in accord- 
ance with the law, for the children of a common-law wife’ 
belonged to the mother, and as the mother could not own 
any property, being herself the property of her master, 
her children consequently belonged to her master. The 
Talmudic law, however, interpreted this to mean that 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 43 


this right be granted to the master only when the slave 
was sold by the order of the court and not in any case, 
when the slave had sold himself, and provided also that 
the slave was a married man and a father of children 
(Kidushin 20a). The reason for this provision probably 
was that a married man and the father of a family would 
not suffer very much when he would,at the end of his term 
of servitude, be called upon to part from the common 
law wife given to him by his master, and from the chil- 
dren born from her, as he has another, legally married to 
him, wife and children. ‘But if the slave was single be- 
fore his master had given him his maid to wife, he would 
certainly suffer greatly when the time came to part from 
her and her children, so that the rabbis prohibited to the 
master the marrying of his non-Jewish maid to his un- 
married Jewish slave. 


8. The Treatment of the Jewish Slave. 


In the days of the Talmudists slaves were sold publicly 
in the slave markets. The Rabbis, however, prohibited 
the purchase of a Jewish slave in public. Even the thief 
who was to be sold by the court order, had to be sold 
privately, in order not to degrade the unfortunate Jew 
(Sifra Behar VII, ed. Weiss). 


The master was not permitted to overwork the Jewish 
slave. He was prohibited from ordering the slave to do 
any unnecessary tasks, even such trivial tasks as warm- 
ing or cooling water that was not for immediate use. He 
was also forbidden to order the slave to do a certain 
kind of work for any unlimited space of time. 


The master was also prohibited from ordering his Jew- 
ish slave to do the special work of a non-Jewish slave, 
as for instance, to carry his master’s clothes to the bath 
house, to take off his shoes, etc., although one was per- 
mitted to hire a Jew to do for him all these and similar 
services. The reason for this prohibition, as expressly 


44 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


stated by the Rabbis, was that the laborer who undertook 
to do such work in the status of a freeman would not 
feel degraded by it, whereas the slave, who had no free 
choice left him, would feel humiliated if he were obliged 
to perform such menial services (Torath Kohanim, Behar; 
Mekilta, Mishpatim). 


It was the duty of the master to give to the Jewish 
slave and to his wife and children the same food and 
drink of which he himself partook. The master was not 
to eat white bread while the slave ate black bread. The 
master was not to drink wine which had aged while the 
slave drank new wine that had not yet acquired any 
flavor; nor was the master permitted to sleep on a feath- 
er bed while his slave slept on a bed of straw. The mas- 
ter was not permitted to live in the city while his slave 
lived in a village, or vice versa (Kidushin 20a). The mas- 
ter could not insult his slave, and was also required to 
address him as an equal (Sifra, Behar VII, ed. Weiss). 
Not in vain is there a saying in the Talmud that, “he who 
bought a Jewish slave bought a master for himself,” 
(Kidushin 20a). The Rabbis probably felt that they had 
gone a little too far in their regulations regarding the 
protection of the Jewish slave, but they also realized the 
fact that the master always was the stronger one and 
always had the advantage over the slave, and in order 
to make the relations of the two more equitable, they 
laid especial stress upon the protection of the weaker 
class against the stronger one. They did not, however, 
overlook the necessity to impress upon the slave the obli- 
gations to know his proper place and to endeavor to dis- 
charge his duties in full to his master (Sifra, Behar VII, 
ed. Weiss). 


The Rabbis provided for the Jewish slave’s welfare not 
only during the period of his servitude, but also looked 
after his future. They realized that, having no property, 
the economic situation of the Jewish slave after he had 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 45 


been freed would be grave indeed and they provided in 
advance for this contingency. The Biblical law obligated 
the master to reward his slave at the time when he was 
freed from slavery. This regulation, however, is entirely 
indefinite, and the master could easily enough rid him- 
self of it by the payment of a very insignificant amount. 
The Rabbis therefore, set up a definite amount for this 
bounty, in order that the slave should after obtaining his 
freedom, have some means of obtaining a livelihood as. 
well (Kidushin 17 a). 


The protection and the treatment of the woman slave, 
who was permitted to be sold as a maid only before she 
had reached maturity, will be described in the following 
chapter on minors. 


IV—MINORS 
1. The Duty of Supporting Minor Children. 


No ordinance is found anywhere in the Bible imposing 
on the father the duty of supporting his minor children. 
Such a provision was however entirely unnecessary. 
Parents always supported their children as a matter of 
course. This function was deeply rooted in the minds of 
the parents as a natural duty, so that there was no neces- 
sity for its legal sanction and enforcement (Ketubot 
49a). 


In course of time, however, conditions changed, and 
people here and there began taking advantage of the ab- 
sence of any specific law to that effect. In the time of 
the Hadrianic persecutions, when economic and political 
conditions became very bad, fathers sometime would re- 
fuse to support their children. The Talmud, therefore, 
found it necessary to enact a special law, which made it 
obligatory for the father to support his children at least 
until they were six years of age. 


+6 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


The Sanhedrin that met in Usha found it necessary to 
impose a legal obligation on the father to support his 
children even after six years of age, but this was not gen- 
erally accepted (Yerushalmi Ket. IV-8). The duty of 
supporting all children until six years of age applied 
equally to one’ illegitimate issue (Yebamot 22a). 


The obligation to support minor children was incum- 
bent only on the father, for the mother was just as help- 
less as the minor children themselves, the both of them 
being dependent on the good will of the father and hus- 
band. Nor was the wife’s status changed after the death 
of her husband, for, while the minor sons then automat- 
ically became the owners of the estate of their father, the 
woman’s dependence continued as heretofore. 


There is, however, one provision specially imposed on 
the mother and that is the protection of her infant child. 
A widow was not permitted to marry within twenty-four 
months after the birth of a child, for, should she become 
pregnant, she might thereby be rendered unfit to suckle 
her infant, and her second husband might be unwilling to 
provide for its rearing by any other means (Yebamot 
42 a). 


A father, as above stated, was obligated to support his 
children up to six years of age, (Ketubot 65a), yet while 
the Rabbis did not care to impose any legal obligations 
on a man for the support of his children after they 
reached this age, they took great pains to influence him 
in doing so on purely moral considerations. They de- 
clared that to support one’s children was tantamount to 
doing continuous charitable acts (Ket. 50a). They also 
employed the power of public opinion to attain this de- 
sired result. Sometimes they would even denounce pub- 
licly those who declined to comply with this moral duty 
Ket. 49b; Ket. Jer. IV. 8). The Talmud declared fur- 
ther that the absence of any legal ordinances for the 
father to support his children after the age of six, applied 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 47 


only in the case when the former was poor, but when the 
father of the children was rich, he could be compelled to 
do so as a matter of charity (Ket. 49b). 


The earnings of children who were supported by their 
father belonged to their father. But, according to the 
law, the children always had the right to refuse the sup- 
port of their father and retain their earnings for them- 
selves (B. Mez. 12b). 


2. The Posthumous Duty of Supporting a 
Minor Daughter. 


The earliest mention of any positive response to the 
obligation to support one’s minor children is to be found 
in connection with the posthumous minor daughter. This 
was the natural result of circumstances. The property 
of the father was, in accordance with the Biblical law, 
inherited by the male children only, while the female 
children were left totally at the mercy of the male chil- 
dren. In the event of the male children’s refusal to sup- 
port their sisters, the latter would be rendered entirely 
destitute. Therefore, it was found necessary at a very 
early time to make it a provision of the marriage con- 
tract (Ketubah) that in the event of the husband’s death 
his female orphans should be maintained from his estate 
until they are married (Yer. Ket. IV 12; Mishnah Ket. 
52b). 


The provision must not necessarily be written into the 
contract, for it is binding on the husband not by virtue 
of the contract in which it is entered, but by virtue of its 
being a court enactment which one tacitly accepted at 
marriage (Ket 52 b). This enactment was a great re- 
form in itself, for it quite often, and contrary to the Bib- 
lical law, made the female instead of the male children 
the real heirs of the father’s property. That this was a 
very early enactment can be seen from the fact that the 


48 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


Mishnah does not speak of it as an innovation, but as 
an old tradition. 


The support of one’s daughter out of the property of 
her father after his death was not in the nature of the 
fulfillment of an obligation towards one’s children, but 
rather toward one’s wife. The daughters derived this 
right through the express or implied contract given to 
their mother. That this provision should come to be 
looked upon as imposing on the father a duty not tow- 
ards his children, but rather towards the wife, is due 
to the fact that it was primarily the woman who suffered 
if her daughters were rendered indigent by the death of 
her husband. Her own condition was deplorable enough, 
and she, no less than her daughters, was dependent on 
the good will of her sons. Her struggle for existence was 
however bound to become still harder by the lack of any 
solid basis for the support of the female orphans. In 
course of time, many enactments were made for the ame- 
lioration of the conditions of the widow. But even so she 
would certainly not have been entirely relieved had the 
orphaned daughters not been provided for. Thus it came 
to pass that the duty of supporting his daughter was 
classed among the duties of a husband towards his wife. 
We are, however, justified in treating this subject here, 
since the female children became the direct beneficiaries 
of this ordinance. 


If the property left by their father was not sufficient 
for the support of both the male and female orphans, 
then the entire property must be given to the females 
(Ket. 108 b). This was the climax of the rabbinical re- 
form, for in this instance the females became the practi- 
cal heirs of their father’s estate, quite contrary to the 
Biblical law which declared that inheritance was the ex- 
clusive right of the males. 


It is indeed true that theoretically the males still were 
the heirs, while the females became the possessors of 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 49 


the property only through a contractual obligation. This 
instance clearly illustrates the general principles in the 
development of the Jewish law. While no law was direct- 
ly abolished, means were found by which these same laws 
were made inoperative. 


8. The Miun Institution. 


The reform instituted concerning the support of a 
minor daughter after her father’s death did not seem to 
protect her fully in all her rights. It would seem that 
certain unknown circumstances arose which rendered un- 
safe the chastity of minor daughters (Yeb. 112 b. see 
Rashi). This condition gave rise to another great re- 
form, which later developed into an established institu- 
tion in Jewish life. 


According to the Biblical law, only a father had the 
power to give his minor daughter in marriage. In order 
to remedy the evils spoken of in the last paragraph, the 
Rabbis instituted that the mother or the brothers of the 
minor female might secure the protection of a husband 
for her by giving her in marriage. This was not entirely 
an innovation. The giving of a minor daughter in mar- 
riage by her mother or brothers certainly did not ori- 
ginate in an enactment of the Rabbis, but existed as a 
frequent practice among the people, to which practice the 
Rabbis readily gave their sanction. 


But this power of the girl’s mother or brothers was 
different from the similar power exercised by her father. 
The power of a father to give his minor daughter in mar- 
riage was considered as his exclusive right, and, there- 
fore, he needed not to consult his daughter when wishing 
to exercise it. But the law giving the brothers and moth- 
ers this same power was established primarily for the 
benefit of the minor. This law intended, then, to secure 
a new privilege neither to her mother nor to her brothers, 
but to the minor orphan. Consequently, a mother or 


50 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


brothers could exercise the power of giving the orphan 
daughter in marriage only after they had obtained her 
consent to it (Jer. Yeb. XIII 2). 


But, while this reform brought protection and even 
happiness to some orphans, it certainly marred the hap- 
piness of others, since the females who entered in such 
marriages were of an age at which they did not have 
sufficient intelligence for making a proper choice. To 
offset this evil, another institution arose, which no less 
than the provision for the giving of a minor daughter in 
marriage by her mother or her brothers, was a reform of 
post-Biblical times. This institution is spoken of by the 
Rabbis as Mi’un, meaning refusing or objecting, and con- 
sisted of the power.the minor female orphan possessed 
of invalidating the marriage contracted for her either by 
her mother or her brothers (Eduyot Ch. VI, Act 1). 
Mi’un, as we shall see later on, was different from, and 
did not call for any bill of divorce. It was simply an ob- 
jection made on her part to the living any longer with 
her husband, the procedure of which was marked by 
very few formalities. 


The inauguration of this institution would involve, it 
appears, a qualified disregard of certain Biblical rules: 


(1) According to the Bible, a separation between a 
wife and her husband could be brought about only by 
the expressed will of the latter, and could be effected only 
by a certain process in which he formed the main factor. 
In the case of Mi’un, however, the invalidation of the 
marriage was caused by the will and the action of the 
wife alone. 


(2) The method of procedure in Mi’un was totally dif- 
ferent from divorce procedures. 


(3) According to Biblical prescription, the action of a 
minor in matters requiring intention or intelligence, was 
invalid. According to one rabbi’s opinion, a minor could 


COLUMBIA UNIVERSITY ORIENTAL STUDIES il 


not even become the passive recipient of a bill of divorce 
given to invalidate a marriage contracted for her by her 
father (Eduyot Ch. IV). And yet, the practice of Mi’un 
is not to be considered either as a violation of the Bibli- 
cal law, or as a substitution for the bill of divorce. It 
was the Rabbis who acknowledged the validity of the 
marriage of a minor daughter after her father’s death, 
and it was the rabbis again who possessed and exercised 
the power of providing the means for invalidating this 
same marriage (See Yer. Yeb. XIII, I). 


The Rabbis also provided ample protection for the mi- 
nor daughter in cases of seduction and debauching. The 
Bible enumerates two forms of debauching women: 


(1) By violence, and; 
(2) By seduction. 


In the case of violence, the wrongdoer was compelled 
to marry the injured female whom he could never there- 
after divorce, and was also required to pay fifty “‘shekels”’ 
to her father. In case of seduction, he was not obliged 
to marry her, but was required to pay the fifty “‘shekels.” 
The fine was remitted if he married the injured party. In 
the Mishnah this fine was increased. In case of seduc- 
tion, the Mishnah provided that the wrongdoer was to 
pay for the disgrace which she had sustained, as a re- 
sult of his act, for the decrease in the value of her per- 
son, all of this in addition to the fixed fine of fifty “shek- 
els.” In case of violence, he was also to pay for the pain 
that she had suffered (Ket. 39a). This enactment shows a 
desire on the part of the Rabbis to protect the minor, 
though the fines belong to the girl’s father. 


4, The Status of the Maid Servant. 


A father had the right to sell his daughter as a maid, 
“Ammah” (Exod. 21, 7). Her master usually bought her 
with the object of either marrying her himself (Exod. 


52 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


21.8), or of marrying her to his son (Exod. 21.9). The 
Bible probably permitted a father to sell his daughter 
when this proved to her own benefit. This right of a 
father, however, when misused, could easily have become 
a menace to the minor daughter, so that the Rabbis took 
great pains in protecting her in every possible way. 


According to the Talmudic law, the right to sell his 
daughter was granted to a father only in cases of ex- 
treme poverty (Kidushin 20 a; Arakin 30 b.), So that just 
as soon as his financial condition had improved, he was 
obliged to ransom her. A father was not permitted to sell 
his daughter twice (Kidushin 18a). Neither could he 
sell her after she had reached physical maturity, ordinar- 
ily at twelve years of age (Kidushin 18a). The Rabbis 
also prohibited the sale of a minor daughter to one who 
was unable to marry her himself and had no children 
who could do so (Kid. 20a). 


If a father had sold his minor daughter on condition 
that the master should not marry her, that condition was 
void, it being against the law. The sale of a minor 
daughter was permitted for her own sake only, in order 
_ that she might marry the master or one of his sons, and 
her father could not make any agreement to the contrary 
(Kid. 19b). 


A father was also prohibited from selling his minor 
daughter after she had already been married and di- 
vorced, or had become a widow (Kidushin 18). 


If the master or his son did not wish to marry the 
maid-servant, she could obtain her freedom by either of 
the following ways: 

(1) On the seventh or the Jubilee year. 

(2) By the death of her master. 


(3) By reaching physical maturity ordinarily at twelve 
years of age. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 53 


(4) By ransom, and; 


(5) By a Bill of Freedom (Kidushin 14b, 16b, 17b, 18 
a). 


When a maid was redeemed, her master was morally 
obliged to reward her, in order not to leave her go out 
of his house without any means (Kidushin 16 b). 


In case her master or his son married her, she was to 
be considered not as a common law wife but as a legal 
wife and entitled to all the privileges and the immunities 
of a legally wedded wife. 


All the above enumerated Talmudic laws were merely 
theoretical, as has already been stated (See The Jewish 
Slaves I). Jewish slavery had long since been abolished 
and, hence, the right of a father to sell his minor daugh- 
ter as a maid-servant was doubtless also denied him. 
But they show, however, how far the Rabbis sought to 
protect the minor woman. A father, however, still re- 
tained his right to marry his minor daughter to whomso- 
ever he wished. But in the later Talmudic period, the 
Rabbis issued a law prohibiting the father from marry- 
ing off his minor daughter without her consent (Kid. 41 
a). 


5. Sundry Regulations for the Protection of Minors. 
(a) Guardians and Their Duties. 


A guardian over a minor orphan could be appointed 
either by the father of the child shortly before his death, 
or by a court of law (Git. 52a). But in either case the 
powers possessed by the guardian were limited to those 
that accrued to the benefit of the orphan. A court ex- 
ercised control over the guardian and it could, therefore, 
remove him whenever it found it necessary to do so. It 
could remove him, when he was found wasting the or- 
phan’s property (Git. 52b). It could also remove him if 


54 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


at any time during his term of incumbency, he lived at 
an expense higher than that which his own means per- 
mitted him, and thus aroused the suspicion that he was 
misusing the estate of the minor (Git. 52b). 


(b) Purchase. 


Ordinary or secular purchases were made by means of 
Meshika, by pulling or removing the article (Kid. 28b). 
This regulation was made for the purpose of making it 
obligatory on the purchaser to consummate the sale, 
after the purchase price had been paid, by moving the 
article which he had already bought. Meshikah did not 
however apply to Temple purchases. In the latter case, 
the ownership of the article bought changed hands by 
the simple act of payment of the price if the sale would 
be of benefit to the temple. This provision, as can read- 
ily be seen, greatly protected the interests of the temple. 


The Jewish law declared that the estate of minor or- 
phans enjoyed the same status as the estate of the Tem- 
ple with regard to purchase, if it was to their advantage 
that the sale be consummated by the simple payment of 
the purchase money. If, however, the interests of the 
orphan demanded that a purchase made shall become 
valid only by the act of Meshikah, the estate of the or- 
phan then enjoyed the status of a secular estate, and the 
mode of transaction was ordered accordingly. If one, 
however, had bought an article of an orphan the value 
of which decreased before he committed the act of ‘pull- 
ing’, the purchase was considered as consummated and 
valid by law (Kid. 29a, Git. 52a). 


(c) Debts to Orphans and the Sabbatical Year 


According to the Jewish law, all debts are forfeited 
during the Sabbatical year. Hillel however caused the 
abrogation of this law by his enactment of the law of the 
“Pruzbul’ (a legal document which the creditor submit- 
ted to the court, and was duly signed by this latter body), 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 55 


by which means the debt was transferred to, and re- 
claimed by, the court from the debtor. 


No submission of a “Pruzbul”’ was necessary, however, 
for sums owed to minor orphans. The court assumed 
the power of action against the debtor, by the simple 
fact that it was acting in a parental relation to the or- 
phan (Git. 37a; B.K. 37a). 


(d). Attachment of the Estate of a Minor Orphan. 


An attachment would not be issued against the estate 
of a minor orphan to pay his father’s debts excepting 
when there was sufficient evidence that the debt had not 
been paid (Arakin 22 a). This held good only in that 
case where the father had acknowledged that debt be- 
fore his death (Arakin 22; B.B. 17), or in the case when 
the loan had been made for a specified period of time and 
the debtor had died before that period expired. In the 
latter case, it was properly assumed that a man does not 
pay any debt before it is due (B.B. 5 b). 


The courts also had the right to issue an attachment 
in the case where the father of the orphan had been ex- 
communicated, for not paying that debt. Any claim that 
the orphan’s father may have paid his debt was removed 
in this case by the fact that had he done so, he would 
surely have done it through the agency of the court, in 
order to remove the ban from him (B.B. 174b). 


With the exception of these three named instances, no 
attachment was ever to be issued. The reason given 
by R. Hunah for this rule was, the doubt lest the father 
of the orphan had paid his debt to the creditor, but that 
insufficient time had elapsed between the time of pay- 
ment and the former’s death to have the bill recalled 
from the holder (Arakin 22 a; B.B. 174). Baba went even 
further and stated that there was always a possibility 
that the debtor had a receipt for'the payment of his debt, 
but which the orphan could not find. 


56 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


Under particularly urgent circumstances, an attach- 
ment was issued even when there was no absolute evi- 
dence that the debt had not been paid. Such as the case 
in which the speedy payment of the debt would prevent 
the orphans from suffering any loss, as, for example, 
when the debt was bearing interest (Arakin 22). Asa 
Hebrew was not permitted to accept interest from a fel- 
low Hebrew, such a case could, therefore, occur only 
when the loan had been made from a Gentile who had 
voluntarily submitted to Jewish jurisdiction in every- 
thing except the taking of interest (Arakin 22). R. Jo- 
hanan was of the opinion that an attachment may also 
be issued for a widow’s Ketubah because the orphans of 
the family were thereby benefited, due to the fact that 
they would not have to support her in the event ‘of her 
collecting same (Arakin 22). 


The Mishnah rules that all payments were to be made 
from the poorest portions of the fields inherited by or- 
phans (Git. 48b). 


In the Babylonian Talmud, we find the question raised 
as to whether this ruling applied also to the estate of 
orphans after the age of maturity and an affirmative de- 
cision was given (Git. 50). But the Palestinian Talmud 
ruled expressly that it applied only to the estates of a 
minor orphan (Yer. Ket. IV, 7; Git. IV, 2). 


V—WOMEN AND THEIR STATUS 


1. The Protection of a Woman Against 
Her Husband. 


According to the Biblical law, the duties of a husband 
to his wife consist of just three actions: 

(a) To provide her with necessary food. 

(b) To provide her with clothing, and 


COLUMBIA UNIVERSITY ORIENTAL STUDIES Cy | 


(c) To fulfil his marital obligations towards her 
(Exod. 21.10). 


The Rabbis, however, added seven more duties to this 
list. These are: 

(a) To settle upon her a stipulated amount of money 
in the event of her divorce by or the death of her hus- 
band, as was provided in the ‘“‘Ketubah”, (the marriage 
contract). 

(b) To provide for medical treatment of his wife in 
case of her illness. 


(c) To ransom her if captured. 
(d) To provide the expense of her funeral. 


(e) To provide for the support of their unmarried 
daughters, who according to the law, did not participate 
in the inheritance. 


(f) To provide for’her support after his death, and 


(g) To permit the wife’s sons to inherit the sum set- 
tled upon her by the Ketubah, over and above what ‘they 
would inherit together with their brothers from other 
wives in their capacity as sons of their father (Ket. 46; 
47; 48; 51; 52). This prescription simply meant that the 
protection enjoyed by the woman was extended also to 
her children, in order that she should not be made to 
suffer on account of them. 


One of the most important means evolved for the pro- 
vision of the support of the woman was the “Ketubah”’. 
This was a document that was in the nature of a mar- 
' riage settlement, whereby a virgin was to obtain 200 
“Zuz’, and a widow 100 “‘Zuz’’, in case of divorce or the 
death of her husband. This regulation was enacted by 
the Rabbis in order to provide for the divorcee, and the 
widow when they had nobody to look to for support. 
Usually the ‘“Ketubah” was written before the marriage, 
and was read at the wedding. According to the Talmud- 


58 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


ic law, marriage was considered immoral without the 
previous writing of the “Ketubah” (Ket. 57a; B. Kama 
89a). 


In course of time, the provisions of a “Ketubah” be- 
came self-evident and a mere matter of form and it was 
binding on the husband even if he did not sign the writ- 
ten document. 


If a widow did not make demand for her settlement 
under the ‘“‘Ketubah” and she did not remarry, she was to 
be supported from the property of her husband (Ket. 52b; 
54a). The support given by a husband to his wife was to 
be in accordance with his own and her standing in so- 
ciety, but a minimum scale was fixed even for the very 
poor (Mishnah Ket. 64b). 


A woman who was supported by her husband was ex- 
pected to do the housework in case her husband’s means 
do not permit him to employ servants. The Rabbis, how- 
ever, obliged the man not only to share with his wife in 
the housework but to perform the more difficult tasks 
and let his wife do the easier tasks (Mishnah Ket. 61a). 


- If a woman wished to remain independent, i.e., not to 
be supported by her husband and to retain the profits of 
her work for herself, she was permitted to do so. The 
obligation placed upon a husband to support his wife 
was enacted by the Rabbis for the sake of the protection 
of the average woman, who usually was unable to sup- 
port herself by her own work. If, therefore, a woman 
found that the provisions of this enactment would not 
accrue to her benefit, she may refuse to be governed by 
it (B. Batra 49 b). 


Although as a rule the woman was dependent on her 
husband for support, the latter had no right whatever 
over the person of his wife. Accordingly'a man is re- 
sponsible for any bodily injury caused by him to his wife 
(B.Kama 32a). The principle of the law was that the 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 59 


wife was to share all'the privileges and immunities of the 
husband and not be made to suffer on account of any of 
his disadvantages (Ket. 48b; 61a). A wife enjoyed com- 
plete freedom and her husband had no ‘right to compel 
her to change her habits, customs, or manners. Neither 
was a husband permitted to force his wife to change her 
residence from the city to a'country place, or vice versa, 
if this happened to be opposed or contrary to her accus- 
tomed way of living. Nor could he compel her to leave 
her native country and follow him to another land unless 
he comes from abroad and there was an understanding 
at the time of the marriage that she would follow him to 
his own country (Ket. 106a). 


There were, however, exceptions to these laws. A wife 
was obliged to follow her husband from'any country to 
Palestine, and from any city or town in Palestine to Je- 
rusalem (Ket. 110b). The same privilege, however, was 
also granted to the woman, who could 'compel her hus- 
band to follow her to Palestine or to Jerusalem (Ket. 
110b). 


No husband was permitted to force his' wife to change 
their common dwelling, even though the proposed dwell- 
ing might be a better one, because the wife cannot be 
compelled to assume the severer duties involved ‘in at- 
tending to a better dwelling. It seems that the woman 
alone could decide upon any change of dwelling for the 
family (Ket. 110b). 


To what extent the Rabbis sought the material protec- 
tion of the woman may be especially seen from the fol- 
lowing provision: If a woman sold that’part of her prop- 
erty known as “mort-main” to her husband, or gave it 
to him as a gift, she could annul this sale or this gift 
and retain her property (B. Batra 49b; 50a). The Rabbis 
realized, that the woman as the weaker sex, usually was 
under the influence of her husband, and may have 
entered upon such a transaction as a result of undue ‘in- 


60 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


fluence used by him, and therefore saw fit to annul this 
act. For the same reason, they decreed that if the man 
has sold or conveyed as a gift the property of his wife 
to someone else, the transaction is void, even though the 
woman has formally given her consent to it. In such 
a case the woman may claim that she had given her 
consent to the transaction merely to please her husband, 
but had never thought of selling or conveying her prop- 
erty to anyone else (B.Batra 49b; 50a; Mishna Git. 55b). 


The right of divorce was confined by the Bible exclu- 
sively to the man (Deut. 24.1). The Rabbis, however, 
in some instances, gave the woman also the right of com- 
pelling her husband to grant her a bill of divorce. If the 
man is an epileptic, a leper, or is impotent, his wife was 
permitted to compel him to grant her a bill of divorce. 
Furthermore, if the man suffered, after marriage, an in- 
jury by which he lost’a limb, he was compelled, on the 
demand of his wife, to grant her a bill of divorce. More- 
over, a wife had the right to demand a bill of divorce even 
if there was no particular physical fault in her husband, 
but if he had engaged since his marriage in a repellent 
occupation, e.g., tanning (Mishnah Ket. 77a). 

According to the interpretation given by ‘Maimonides, 
Yad, Ishut XIV, 8, of Ketubot 68a, incompatibility of 
character is sufficient cause for divorce. The Rabbis 
also compelled a husband to grant a bill of divorce to 
his wife in the following instances: 

(1) For having intercourse with other women (R. 
Alexander Siskind of Frankfurt, Aggudah Yebamot) ; 

(2) For not supporting his wife (Ket. 77b). 

(8) For not fulfilling his marital'obligations (Ket. 61 
b). 

(4) For refusing to allow his wife to occupy his home 
(Ket. 77b). Comp. Iben Adret, Responsa 693. 

(5) For ‘leaving the country for an indefinite period 
(Ket. 61b; 110b). 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 61 


2. The Protection of the Agunah 
(Deserted Woman) 


Adultery is considered a criminal offense according to 
the laws of the Rabbis, based on the Biblical law. Never- 
theless, the Rabbis endeavored to find a way to grant to 
a deserted woman who did not know the whereabouts 
of her husband, the permission to marry on the slightest 
evidence of the death of her first husband. 


If, for example, one heard children saying that they 
were going to, or returning from, the funeral of so-and- 
so, such testimony was deemed ‘sufficient to grant his 
wife permission to marry another man (Yeb. 121 b. Mish- 
nah). We already know that the testimony of children 
would not suffice in all other cases. It is possible that 
a mere off-hand chat of children, in which there was no 
intention of testifying to anything would be more reli- 
able than their formal testimony. However, one cannot 
deny that it was a great reform on the part of the Rabbis 
to permit a married woman to re-marry on the basis of 
mere children’s gossip that they had attended or were 
going to attend the funeral of that woman’s husband. 


If a woman had followed her husband abroad and af- 
ter a while she returned and testified that her husband 
had died, she was permitted to re-marry on the basis 
of her own testimony. Likewise, if there was one wit- 
ness, even an indirect one, who had heard from someone 
else of the death of that woman’s husband, even if the 
witness was a Slave, the Rabbis permitted this woman 
to remarry on the basis of such testimony. In other 
cases, the testimony of one’s self, or the second-hand 
testimony of a slave, was not considered competent, but 
in this instance the Rabbis made an exception, in order 
to give the woman an opportunity to remarry, even 
though the act of cohabitation of a married woman with 
more than one man was punishable by death’ (Yeb. 117- 


62 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


122). The Rabbis thoroughly realized the hard life of 
the deserted woman and the widow and endeavored to 
protect them. 


The Rabbis also extended their protection to the widow 
debtor to shield her against her creditors. The Bible 
prohibited to the creditor the taking of a pledge from a 
widow-debtor (Deuteronomy 24. 17). During the Biblical 
period, when the Jews were a peasant folk, a widow usu- 
ally was a poor woman, the land having descended to the 
male heirs, and the widow frequently remaining without 
any means of support. The enactment of the “Ketubah” 
took place in the Post Biblical period. Consequently, the 
Biblical law’ prohibited a creditor the taking of any 
pledge from a widow, who most likely was borrowing 
money from him for her support, or the support of her 
minor daughters. But the Rabbis extended this law to 
apply even to a rich widow, probably for the mere sake 
of protecting the weaker sex, and the weaker class of 
society (Mishnah B. Mezia 115a). 


The Rabbis realized also that a woman was more sus- 
ceptible to shame than a man. For this reason, it was 
enacted that if a man and woman were made captive, 
and there was a possibility of ransoming only one of 
them, the preference was to be given to the woman. Like- 
wise, if a man and a woman were both in need of food 
or clothes, and there was a possibility of helping only 
one of them, the woman had the preference over the 
man (Horiot 13 a), for a woman felt greater humiliation 
than a man when compelled to apply for charity. 


VI—DEBTORS 
1. Interest According to the Talmudic Law. 


(a) Indirect Interest. 


The law prohibiting usury is based upon the following 
verse of Pentateuch (Lev. 25. 37). “Thy money shalt 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 63 


thou not give him upon usury, nor lend him thy victuals 
for increase.” 


Usury as prohibited by the Pentateuch is “direct” or 
“express” interest, but the Talmudic interpretation in- 
cludes also “indirect” interest, i.e., the law of Moses pro- 
hibited the making of any loan when effected by the 
parties with the express understanding that the lender 
shall receive some compensation for the loan, while the 
Talmud forbade any transaction or deal which, though 
legitimate in its inception, may ultimately develop into 
a usurious transaction (Mishnah B. Mezia 59b; Gemara 
62-4-6). 


A person was, for instance, prohibited from giving his 
merchandise to a shopkeeper to sell under a contract that 
the gross profits, i.e. the difference between the whole- 
sale and the retail price, should be divided equally be- 
tween them; nor may a person give the shopkeeper 
money wherewith 'the latter was to buy merchandise at 
wholesale and then sell the same at retail and divide the 
profits between them, unless the shopkeeper is compen- 
. sated for his trouble (Mishnah B. Mezia 68a). 


These transactions are prohibited by law as usurious, 
for the reason that the retailer in all such cases assumes 
the responsibility of a borrower to the extent of one-half 
the value of the merchandise in case of loss, while as re- 
gards the other half he is considered a bailee (Gemara B. 
Mezia 104b). It consequently comes down to this that 
because the owner had lent one-half of his merchandise 
to the retailer, the latter, in consideration thereof, un- 
dertakes to sell the other half of the merchandise belong- 
ing to the former. In other words, the owner of the 
money gets the benefit of the retailer’s labor as compen- 
sation for his loan (Rashi to Gemara B. Mezia 68a). Such 
a transaction is, therefore, permitted only when the re- 
tailer is compensated for his work (Gemara B. Mezia 
68b). 


64 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


(b) “Dust of Interest” (Abak Ribit). 


If one selling his field says to the grantee: “If you will 
pay me for it now, you can have it for one thousand 
‘yuz’; but if you will pay me for it at harvest time, you 
will have to pay for it twelve hundred ‘zuz’ ”—this is 
prohibited (Mishnah B. Mezia 65a). In a case such as 
this, according to the interpretation of the Gemara (B. 
Mezia 65a), the buyer, upon the delivery of the article 
sold, must immediately pay the purchase money agreed 
upon at the time of this'sale. If he does not pay the pur- 
chase money then such sum becomes a debt. Now, the 
grantor is selling his field for one thousand “zuz’” on 
condition that the grantee would pay immediately upon 
the delivery, but if the grantee does not pay then, he will 
have to pay for the field twelve hundred ‘“zuz’. The 
terms of such an agreement clearly indicate that the field 
sold is of the value of a thousand “‘zuz” only, and that the 
two hundred extra “zuz’ are charged to the grantee by 
the grantor solely for the privilege granted to him of not 
paying the entire purchase price that is due immediately. 
The making of such an agreement is therefore prohibited 
by the Rabbis as usurious, for it is, as' the Rabbis call it: 
‘Dust of Interest” (B. Mezia 65a). 


(c) Evasion of the Law Against Interest. (Haaramat 
Ribit). 

‘If A lends B wheat worth one hundred ‘zuz’ and the 
lender buys back the same wheat from the borrower for 
90 ‘zuz’, this is prohibited” (Beraita B. Mezia 62b). This is 
not usury pure and simple, for the amount of wheat that 
A had lent to B really was worth one hundred ‘zuz’. 
But B needed money and had no time or desire to look 
about for a buyer, so that he was willing to sell back 
the wheat to A for ninety ‘zuz’. Though the original 
transaction—the lending—was not conditioned upon the 
second transaction—the selling, and thus the selling of 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 65 


the wheat at a low price was not directly a reward for 
the lending of the wheat, the Rabbis, nevertheless, pro- 
hibited it as “tricky” interest. 


(d) The Resemblance, or Similitude, of Interest. 


A creditor is prohibited from living in his debtor’s 
court-yard gratis, or even living there at a reduced rent- 
al (Mishnah B. Mezia 64b). By this, according to the 
‘interpretation of the Gemara, (B. Mezia 64 b) is meant, 
that the lender is not allowed to occupy the borrower’s 
court-yard even in the case when such court-yard is 
vacant, the owner having no intention of letting the same 
or of realizing anything therefrom, and the lender not 
being benefited by such occupation, because he has a 
court-yard of his own. This is prohibited for the reason 
that it will appear as a usurious transaction to those who. 
are unfamiliar with the facts of the case (Rashi on Ge- 
mara, B. Mezia 64 b). 


(e) Words as Interest. ' 


Rabbi Simon says that there is a kind of usury which 
consists of mere words, as when a debtor says to his 
creditor: “I hereby inform you that such and such a per- 
son has arrived from such and such a place” (Mishnah, 
B. Mezia 75 b). This, of course, is forbidden only when 
such information is given either by reason of some past 
loan, or in consideration of a future loan now contem- 
plated to be made, and that no such information would 
have been otherwise given. 


From this, it would appear that if there was any com- 
pensation at all given in return for a loan, the loan was 
considered as tainted with usury. 


(f) Multiple Transgression. 


It is not only the debtor and the creditor that trans- 
gress the negative injunctions relating to the taking of 
usury, but also the surety, the witnesses, and even the 


66 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


one who writes the contract, as well as the agents 
(Mishnah B. Mezia 75b; Gemara B. M. 62a). All these 
men, according to the Rabbis, are equally responsible for 
the violation of not only one injunction, but of the viola- 
tion of all the following commandments: “Thy money 
shalt thou not give him upon usury” (Lev. 25. 37) ; “Thou 
shalt not take of him any usury” (Lev. 25. 36); “Thou 
shalt not be to him as a lender of money” (Ex. 22. 24); 
“Thou shalt not lay upon him any usury” (Hx. 22. 24) 
and “Thou shalt not put a stumbling block before the 
blind; but thou shalt be afraid of thy God; I am the Lord” 
(Lev. 19. 14), (Mishnah B. Mezia 75b). 


(g) Non-Israelites. 


It is written in the Pentateuch (Deut. 22. 21) “From 
an alien thou mayest take interest, but from thy brother 
thou mayest not take interest.” The reason that non- 
Israelites are, in certain instances, excluded from the 
benefits of the Jewish law is that there is in their case a 
want of mutuality. Among the Jews’ neighbors, the 
taking of interest was an absolutely legitimate procedure, 
and an action at law could be maintained by the lender 
to recover the money lent as well as the interest acerued 
thereon (B. Mezia 62 b). 


The Jewish jurists have followed, therefore, the law of 
Pentateuch, in permitting a Jew to take interest from a 
non-Jew, but they have likewise made it legal for a Jew 
to pay interest to a non-Jew (Mishnah and Gemara B. M. 
70b). 


2. Pledges. 


The rules of protection for the debtor with regard to 
pledges are based upon the following Biblical verses: 
“When thou dost lend thy friend any manner of loan, 
thou shalt not go into his house to fetch his pledge. Thou 
shalt stand without, and the man to whom thou dost lend 
shall bring forth the pledge without unto thee. And if he 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 67 


be an ‘ani’ (a poor man), thou shalt not sleep with his 
pledge, thou shalt surely restore to him the pledge when 
the sun goeth down, that he may sleep in his garment, 
and bless thee; and it shall be righteousness unto thee 
before the Lord thy God” (Deut. 24. 10-14). “If thou 
take at all thy neighbor’s raiment in pledge, thou shalt 
restore it unto him'by the time the sun goes down; For it 
is his only covering, it is his raiment for his skin; wherein 
shall he sleep? And it shall come to pass, when he crieth 
unto me, that I will hear; for I am gracious” (Exod. 22. 
25-27). These commandments were interpreted and ex- 
panded by the Talmudists as follows: 


If A lent money to B the same to be paid at a certain 
fixed time, and if the debtor did not pay the sum when 
due, the creditor then had the right to take a pledge from 
the debtor in order to secure the payment of the debt. 
But the creditor could not take such pledge without pre- 
viously obtaining a court order to that effect, and. the 
order had to be carried out by an officer from the court 
(Mishnah B. Mezia 113 a). Furthermore, the court offi- 
cer was not permitted to enter the debtor’s house to 
take the pledge, as it is said (Deut. 24. 11): “In the street 
shalt thou stand and the man whom thou doest lend shall 
bring out unto thee the pledge into the street.” 


It appears from the above passages that the Biblical 
law did indeed give the right to the creditor to exact a 
pledge from his debtor'in order to secure the debt, pro- 
vided he did not enter the debtor’s house, i.e., if he did 
not take it by violence, but took it with the consent of the 
debtor. But the Rabbis made it necessary for the cred- 
itor to obtain an order first from a court, and even then 
the court officer could not take the pledge himself but 
the debtor had to bring it out to him willingly 


The pledgee was obliged by law to return the object 
taken as a pledge whenever it was needed by the pledger 
to make use thereof. The'pledgee, for instance, had to 


68 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


return to the pledger the pillow for the night and the 
plough for the day (B. Mezia 113a). Of course, all these 
regulations applied only inthe case where the pledge was 
exacted after the loan had been made, but not if the loan 
had been originally made on the security of a pledge 
which the debtor had brought himself to the creditor 
(B. Mezia 114b). 


According to the Biblical law (Exod. 22. 25; Deut. 24. 
6), the creditor who took millstones as a pledge was 
guilty of violating one negative commandment, but ac- 
cording to the Rabbis, he was guilty of violating not one 
but two negative commandments, one for taking the 
nether and one for taking the upper stone, even if he 
took both of them at one and the same time (Mishnah 
B. Mezia 115). The aforesaid rule applied, according to 
the Talmud, not only to millstones but to any implements 
wherewith life-sustaining food was produced (B. Mezia 
115; Makoth 17). 


The court officer was not permitted to take as a 
pledge the most necessary clothes of the debtor, or the 
set of dishes that he was using. Nor was he allowed to 
take his only bed or mattress (B. Mezia 113b). Apparel 
- which the debtor bought or prepared especially for his 
wife or children could not be taken into pledge, even 
though his wife or children had not worn it as yet (B. 
Mezia 114a; Arakin 28b, 24a). 


It is interesting to note the provision that if one had 
guaranteed the debt of another, who failed to pay the 
debt, the creditor was permitted to exact a pledge from 
the guarantor without obtaining any court order. Fur- 
thermore, the creditor was permitted, in order to obtain 
the pledge from the surety, to enter his home, and did 
not need to wait outside as is the provision in the case 
of a principal debtor (Beraita B. Mezia 115a). The rea- 
son for this probably is, that the surety was supposed to 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 69 


be a man belonging to a wealthier class and the Rabbis 
did not find it necessary to protect him if he had failed 
to pay on time. 


The above law applied also to one who did not pay his 
laborer’s wages on time. The employee was permitted to 
enter the house of his employer without any court order, 
and to take a pledge. The Rabbis were very strict in the 
matter of the payment of wages on time, and did not find 
it necessary to protect the one who failed to do so. If, 
however, the employee had agreed that the amount of 
wages due him shall remain with the employer for a cer- 
tain period of time, and the employer thereafter failed 
to pay this sum on the due date, the employee could not 
exact any pledge from the employer without previously 
obtaining an order of the court. In such a case, the wages 
became a debt and the employer a debtor, and the laws 
protecting the debtor applied to him as to all others. 


8. The Release of Debts. 


The law of “Shemitah”’, namely, that the Sabbatical 
year releases and annuls all debts, is based on the fol- 
lowing commandment: “And this is the manner of the re- 
lease; Every creditor shall release the loan which he hath 
lent to his neighbor; he shall not exact it of his neighbor, 
or of his brother” (Deut. 15. 2). 


Rabbi, the editor of the Mishnah, says (Git. 36b), that 
the law of the annulment of debts in the Sabbatical year 
was not to be applied, in accordance with the Biblical 
law, after the abolition of the Jubilee, which occured in 
735 B.C. (Arakin 29a. 32b; Kiddushin 69a). The Bible 
speaks of the Sabbatical year in connection with the 
year of the Jubilee at which time all land conveyances 
were set aside, and the land reverted to the original 
owner (Lev. 25. 1-14). By this ordinance the Bible, 
according to the interpretation of Rabbi, indicated that 
the release of debts in the Sabbatical year was to be prac- 


70 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


ticed only at the time when the release of land in the 
Jubilee year was in vogue. As the Jubilee institution 
had been abolished long before the Talmudic period, the 
release of debts during the Sabbatical year was conse- 
quently abolished as well. The Rabbis, however, subse- 
quently enacted that the law of the release of debts in 
the Sabbatical year shall continue even after the aboli- 
tion of the Jubilee (Git. 36b). 


According to the Talmudic law, a law court could not 
compel a debtor, after the Sabbatical year, to pay to the 
creditor a loan made before the Sabbatical year, even if 
this loan was made on a note. An exception was made 
only in the case of loans made on mortgages and pledges 
(Git. 37a; Shebeeth X Mishna 2). 


It was further provided that even if a creditor had 
made a loan on the express condition that the Sabbatical 
year should not annul it, no court could compel the debt- 
or to pay the debt after the Sabbatical year, as this con- 
dition of the creditor was contrary to the law, and hence, 
was not valid. If, however, this contract had been made 
in such form that the debtor could not repudiate his debt 
even during the Sabbatical year, the court could then 
oblige the debtor to pay his debt after the lapse of the 
Sabbatical year. In such a case, the contract did not con- 
stitute a violation of the law, but rather that the debtor 
had agreed voluntarily to pay the debt from which he was 
otherwise freed by law (Mak. 3b), and this promise ac- 
cordingly became obligatory upon him. 


The Sabbatical year did not annul the debts which 
people owed to their tradesmen, nor the debts which em- 
ployers owed to employees as wages (Mishnah Shebeeth 
X 1). Likewise the debt that a man owed to his divor- 
cee as the “Ketubah” was not annulled by the Sabbati- 
cal year (Git. 18b). 


The reason for this is obvious. The aim of the Rabbis, 
as was also the aim of the Bible, in enacting these laws 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 71 


for the annulment of debts in the Sabbatical year, was 
to shield the impoverished debtor. Usually the debtor 
was a poor farmer or a laborer who had borrowed of his 
richer neighbor or his employer in order to buy seed, 
food, or tools and who, in most cases, found himself un- 
able to pay his debt. If he found himself unable to pay 
his debt before the Sabbatical year, his obligation was 
annulled as a matter of course. It is understood, there- 
fore, that this privilege ought not to be granted to an 
employer as against his employees, or to a husband as 
against his divorced wife, and even not to buyers against 
the tradesmen who usually were poor people themselves. 
The case was just the opposite. The Rabbis were always 
seeking for ways and means of protecting the woman 
against the husband and the employee against the em- 
ployer. 


For a similar reason, the Sabbatical year did not annul 
any debts which one had to pay as a punishment for 
assaulting or debauching a minor, or as compensation 
for other crimes (Git. 18). No one could really expect 
the Rabbis to grant special privileges to this kind of 
debtors. 


If, however, the wage earner had agreed to let his 
wages remain with his employer as a loan, or the divorcee 
had agreed to let the amount of the “Ketubah” remain 
with her divorced husband as a loan, such debts were 
annulled by the Sabbatical year (Git. 18a). 


The annulment of the debts by the Sabbatical year 
was not practiced for any long period during the Rab- 
binical era. Hillel, one of the most illustrious of the 
Rabbis, enacted the “Pruzbul’, a document by which the 
creditor conveyed the collection of his debt to the court. 


At the time of this enactment, commerce was already 
considerably developed among the Jews, so that the fear 
of the annulment of debts by the Sabbatical year hin- 
dered in the greater development of Jewish trade. People 


(pe: COLUMBIA UNIVERSITY ORIENTAL STUDIES 


were not willing to lend any money to merchants, and 
the necessity for reform was greatly felt. This needed 
reform came about in the form of the ‘“Pruzbul’ (Mish- 
nah Shebeeth X 8). 


VII—TENANTS. 


1. House Tenants. 


There were no provisions made in the Bible for regula- 
ting the relations between landlords and tenants. Most 
of the Jewish people during the Biblical period occupied 
themselves with agriculture and probably lived in huts 
which they themselves built. With the development of 
commerce and industry, great numbers of the rural pop- 
ulation migrated to the cities and towns and became 
laborers and artisans. Naturally, many of these laborers 
and artisans could not afford to build or buy houses in 
the towns. Thus, the rental system developed, and to- 
gether with it, the difficulties between landlords and ten- 
ants came to the fore. The Rabbis, therefore, found it 
necessary to enact certain provisions for the protection 
of the tenants. 


When one had leased a house on a monthly rental, and 
did not specify the time when the term of that lease was 
to terminate, the landlord could not dispossess the ten- 
ant during the six rainy months, extending from the 
feast of Tabernacles to Passover, unless he gave notice 
to the tenant thirty days before the rainy season set in 
that he desired to terminate the tenancy. The rainy sea- 
son in Palestine corresponds to our winter season. The 
Rabbis at the time of the Gemara likewise provided that 
the tenant is also obliged to give notice to the landlord 
of his intention to terminate his tenancy thirty days be- 
fore the rainy season sets in. But there is no doubt that 
the Mishnah provided this regulation for the protection 
of the tenant and not the landlord. It seems, however, 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 73 


that for the purpose of balancing the scales, the identical 
protection was later on extended to the landlord as well. 
If the landlord desired to dispossess his tenant during the 
summer, he was obliged to give him at least thirty days’ 
notice. 


In the larger towns, the landlord was required to give 
his tenant twelve months’ notice prior to the time that 
he intended to terminate the lease, whether this was to 
occur in the rainy season or in the summer, because it 
was difficult to obtain premises in the big cities during 
the middle of the year. In the case of factories or stores, 
the landlord was obliged to give the tenant twelve 
months’ notice, whether in big cities or in small towns, 
because shopkeepers generally sell on credit to the people 
of their vicinity and need ample time for the collection 
of their debts. A landlord had, therefore, to give his 
shopkeeping tenant ample time in which to collect all 
his debts. In the case of the shops of bakers and dyers, 
the landlord was obliged to give the tenant three years’ 
notice, because bakers and dyers generally extended 
credit to their customers on long terms (Mishnah and 
Gemara B. Mezia 101b). 


A landlord was expected to provide his house with a 
door, a door bolt, a lock, and such other equipment usu- 
ally made by an artisan. It seems, however, that the 
landlord was not required to provide the house with 
anything that is usually made by the householder him- 
self, for the tenant could then do it himself. The ma- 
nure belonged to the lessor while the lessee had a right of 
property only to the ashes taken out of the oven (Mish- 
nah B. Mezia 102a). According to the interpretation of 
the Gemara, the manure belonged to the lessor only 
when it was accumulated from cattle not belonging to 
either party to the lease, and the place where it had ac- 
cumulated had not been leased to the tenant, but in no 
other instance (Gemara B. M. 102a). 


74 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


If one had rented a house for one year and a leap year 
had afterward been proclaimed, i.e., an additional month 
had been inserted in that year’s calendar, the benefit of 
this added month went to the tenant, and he was en- 
titled to occupy the premises leased for the thirteen 
months that constituted the leap-year. But if the ten- 
ant had rented the house by the month and a leap year 
had been afterward proclaimed, the benefit of this added 
month accrued to the landlord (Mishnah B. Mezia 102a). 


If the leased premises collapsed during the term of 
the lease, the landlord was bound to construct a new 
dwelling for the tenant of the same type and dimensions; 
if it had been a single house the owner was not allowed 
to build a double house in its stead, and vice versa. The 
number of windows in the former house could not be 
diminished, or increased unless same was done with the 
consent of both parties (Mishnah B. Mezia 103a). 


The Gemara interpreted the Mishnah as follows: 


If A had said to B: “I lease you this house (designat- 
ing a certain house) fora period of one year” and during 
such tenancy the house became uninhabitable, the lessor 
was not obliged to build another house for the lessee to 
be occupied by him until the expiration of the term of 
the lease. The reason, for this ruling is that the sole 
consideration for B’s promise to pay a year’s rent was 
that A should surrender the possession of certain partic- 
ular premises designated in the lease. By the lessor’s 
surrendering possession thereof to the tenant, he had 
already done everything he was obliged to do under the 
terms of the lease. 


If, however, A had said to B: “I will lease you a house 
for one year” not designating any definite house, and 
thereafter while B was in possession of such house it 
was rendered uninhabitable, A is bound to build anoth- 
er house for B before he would be entitled to recover a 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 75 


year’s rental of B. The consideration for the lessee’s 
promise to pay a year’s rent in this instance being the 
fact of the lessor’s obligation to provide the lessee with 
a residence for the term stipulated, and not the surrender 
of the possession of any particular house. In this case, 
however, the lessor was not obliged to build a dwelling 
exactly similar to the one previously occupied by the 
tenant, but he could build any kind of a house suitable 
for dwelling purposes (Gemara B. M. 103a). 


But, if the lessor had said to the lessee: “I will lease 
you a house like this one,” in such a case the lessor was 
bound to provide the lessee with a dwelling similar to the 
one expressly mentioned for the entire term of the lease, 
if such dwelling was rendered uninhabitable. He was 
not, however, compelled to build this house in a vicinity 
similar to the one wherein the previous house had been 
built (Gem. B. M. 108a). 


2. Farm Tenants. 


The consideration given by the lessee to the lessor for 
farm land was, either: 


(a) A certain sum in money. 


(b) A stipulated amount of produce of a certain kind, 
or 

(c) A certain percentage of the harvest taken from the 
leased field (B. Mezia 104a). 


If the leased field depended for its fertility upon a nat- 
ural stream, or if there were a number of trees upon the 
field at the time of leasing and some time thereafter the 
stream ceased to run, or the trees were felled (it seems 
that this has reference to some natural destruction and 
. not to destruction brought about by either party), the 
tenant was not entitled to deduct from the rental. If, 
however, at the time of the drawing of the agreement be- 
tween the two parties, the lessee had expressly said: 


76 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


“Let to me this field which depends upon this stream’; 
or “‘this field containing a number of trees’’, and if there- 
after it happened that this stream had dried up or that 
the trees were cut down, the tenant could deduct the 
amount of his loss from the stipulated rental (Mishnah 
B. M. 1038b). 


The reason for the aforesaid ruling is, as stated in the 
Gemara (B. M. 104a), that when the lessee had said 
“this field” it was obvious that he had been on the prem- 
ises that were to be leased and had surely examined care- 
fully their condition and was consequently aware of the 
existence of the spring or the group of trees. Why, then, 
was he so cautious as to mention specifically ‘depending 
upon irrigation” or “containing a group of trees” if not 
for the reason that he had intended to make the spring 
or the group of trees the essence of the consideration in 
the deal. His promise to pay the rental stipulated was, 
therefore, made by him expressly conditioned by and de- 
pendent upon the existence of the spring or of the group 
of trees. 


This, however, is almost the only ruling with the ex- 
pressed intention of protecting the farm-tenant against 
his landlord. The rest of the Talmudic rules regarding 
the letting of land for farming purposes are intended for 
the protection of the landlord rather than the tenant. If 
one had leased a field on the consideration of giving to 
the lessor a certain per centum of the products of that 
field, and the field proved unproductive, he was obliged 
to work on it as long as there was any probability that 
the products raised would be sufficient for the seeding 
of the field the following year and was not permitted to 
abandon it summarily (Mishnah B. Mezia 105a). 


If one had leased a field for a term less than seven 
years, he was not permitted to sow it with flax (Mishnah 
B. Mezia 109a). The lessee, at the expiration of the term 
of the lease, was bound to surrender the field in as good 


COLUMBIA UNIVERSITY ORIENTAL STUDIES ae 


a condition as it had been when he first took possession 
thereof. He was prohibited therefore from doing any 
act which tended to cause such injury to the field as 
would not be reparable before the time that he was ex- 
pected to surrender possession of the field in question 
to the lessor. As explained by Rashi, the soil is injured 
by the roots of the flax to such a great extent that it can- 
not be brought back to its original state before the ex- 
piration of seven years. If, therefore, the lease was for 
a shorter term than seven years, no flax may be sown on 
it by the lessee, because the injury caused to the soil 
by its roots would still be there even after the termina- 
tion of the lease. It would seem, then, that the tenant 
could plant flax only on the first year of a seven years’ 
lease. 


Furthermore, if one had leased a field and some time 
thereafter the crop was eaten up by locusts or was blas- 
ted by a storm, he may deduct from the rental named in 
the agreement if this calamity happened also to most of 
the fields in the vicinity. If, however, it was a misfor- 
tune that befel this particular field only, then the lessee 
had no right to deduct anything from the stipulated ren- 
tal (Mishnah and Gemara B. Mezia 105b). Rabbi Judah 
went still further and said that, “if the lessee had leased 
the field for a money consideration, he could not deduct 
from the rental agreed upon under any circumstances 
(Mishnah B. Mezia 105b). 


The basis of the above rulings is not made clear either 
by the Gemara or by any of the commentators thereon. 
Rashi, to Gemara 105b (obviously following the dicta 
found in the Gemara 106a) says: “that the reason the 
lessee cannot deduct from the rental in the last one of 
the cases cited in the above Mishnah is that the lessor 
may set up the counter claim that the misfortune that 
befell the field was due. entirely to the ill-luck of the 
lessee. This plea could not, however, be advanced by 


78 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


the lessor in the case of a general calamity, it being pre- 
sumed that had he been in possession himself he would 
have suffered in the same manner. But, no matter what 
the reason for this ruling may be, it clearly proves that 
the Rabbis did not seek to protect the farm-tenant as 
much as they did seek to protect the home-tenant. The 
reason for this seems to be that the home-tenant leased 
his house not for business purposes, but for dwelling pur- 
poses, whereas the farm-tenant leased his field for pur- 
poses of business and profits to be derived therefrom. 


The Rabbis, therefore, did not find it necessary to 
grant the farm tenant any special privileges for the sake 
of protecting their interests as they did to the house-ten- 
ant, as well as to other members of the submerged 
classes. 


VITI—THE POOR 


1. Obligations of the Landowners ‘Towards 
the Poor. 


The basic laws for the protection of the poor are duly 
provided for by the Bible. During the Sabbatical year, 
all planting was, as we know, prohibited. It was a year 
of rest for the soil. Whatever did grow during the Sab- 
batical year was to be for the poor only (Exod. 23. 10). 
When one was reaping the harvest of his field he was 
not permitted to reap the corner of his field, neither was 
he permitted to ingather the gleaning of his field harvest, 
or of his vineyard, but was obliged to leave them for the 
poor (Lev. 23.22). 


This command to support the poor was upheld with 
great zeal by the prophets, and was handed down by 
them to the sages and the Rabbis. The rabbis enacted 
specific laws regarding the prohibition of the reaping of 
the corner of the field, the command to leave the glean- 
ing of the harvest and the vineyard, and regarding other 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 79 


kinds of charity. The Rabbis fully realized the fact that 
some of the landowners might possibly abuse the Biblical 
commandments regarding the care of the poor, and they 
endeavored to prevent it by all possible means. The Bible, 
for instance, did not provide for the exact portion of the 
harvest that the landowner was obliged to leave for the 
poor in the corner of his field, so that he could rid him- 
self of this obligation by the leaving of one sheave. The 
Rabbis provided, therefore, that one should leave for the 
poor not less than a sixtieth part of his harvest or of the 
produce of his vineyard. Furthermore, if the field was 
small and one sixtieth of it did not amount to much, es- 
pecially if the poor of the neighborhood were many, the 
landowner was morally obligated to increase the part 
given by him to the poor (Peah I Mishnah 2; Hullin 137 
b). 

According to the Biblical prescription, the law of leay- 
ing a part of the harvest for the poor was to be observed 
only in Palestine (Lev. 23.22), but the Rabbis provide 
that this law should also be binding on the Jewish land- 
owners outside of the Holy Land (Hullin 137b). 


The Bible provided that the landowners should give 
once, every third year, a part of their produce as a tithe to 
the poor (Deut. 26). There is no provision made in the 
Bible with regard to the amount of this tithe for the poor, 
but the Rabbis provided that produce enough for two 
meals must be given to any poor person coming to the 
barn (Peah VIII, 5). 


In order that the landowners may not abuse this or- 
dinance by giving the required part of their produce to 
their own poor relatives, to their servants or workers 
whom they had to support anyway, a law was enacted 
by the Rabbis providing that the landowners had no 
right to dispose directly of that part of their product, but 
that any poor person might come and take it (Peah V; 
Hullin 1381b). 


80 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


The Rabbis also provided that the tithe for the use of 
the landowners, which tithe it was their practice to spend 
and enjoy in other ways in Jerusalem every year, should 
not be collected in the third and the sixth year of the 
‘““‘Shemita’”’, when the tithe for the poor became due, in 
order that the poor should receive a greater percentage 
of the produce of those years. The Rabbis did not abol- 
ish, however, the tithe which was devoted to the support 
of the Levites, for they were also classified among the 
poor (Rash Hashanah 12b; see Rashi). 


2. The “Kupah.” 

During the Biblical period, the Jews occupied them- 
selves mostly with agriculture and their charity most 
likely consisted of the kind of giving such as we have 
already described, namely, of the produce of their land. 
In the Talmudic period, however, it appears that com- 
merce and industry had already developed to a consid- 
erable extent among the Jews. Due to the increase of 
population and the unemployment that frequently occurs 
in a commercial or an industrial society, the numbers 
of the poor increased immensely. The small portions of 
the crop that the landowners were legally obliged to 
leave for the poor probably did not suffice for the support 
of this mighty army of the poor. Besides, there existed 
no moral reason for laying the entire burden of support- 
ing the poor on the shoulders of the landowners alone, 
and thus to relieve entirely the merchants and the crafts- 
men. Many reforms in the matter of charity had, there- 
fore, to be instituted. 


The most important charitable institution during the 
Talmudic period was the “Kupah”, a charitable fund that 
was to be established in every community under the 
supervision of a board of directors (Sanhedrin 17b). 
Legally, the poor of the town were recognized as the real 
owners of these charitable funds and the directors there- 
of acted only as their trustees. The duty of the directors 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 81 


consisted only of taking charge, in the name of the poor, 
over the collection and the distribution of the local char- 
ity fund (B. Kama 36b). 


In order to safeguard the poor funds from fraud and 
mismanagement, the Rabbis enacted a law that the col- 
lection of the donations made by the people should be 
made by not fewer than two and the distribution thereof 
by not fewer than three directors (Sanhedrin 17b; B. 
Batra 8b). 


The “Kupah” provided the poor with food, clothes, and 
other necessities of life as well as their funeral expenses. 
The directors had the right to force contribution to the 
“Kupah” by any one who could afford at all to give char- 
ity and had lived in the community for a period not less 
than one month (Baba Batra 8a). The amount of the 
contribution to be paid by one was estimated by the 
board of directors. If one refused to pay the full amount 
assessed, the directors levied an attachment on his 
property (B. Batra 8b). 


Just as there were people who wanted to avoid the 
giving of charity, so there were also some who wished to 
accept charity, even though they were not in great need. 
The Rabbis, therefore, enacted a law to the effect that 
those who had enough for two meals were not permitted 
to accept any food from the kitchen set apart for the 
poor, and those who had enough for fourteen meals, 
i.e., enough to support themselves for a fortnight, were 
not permitted to accept support from the charity funds 
(Peah VIII 7). Thus, the charity funds were distributed 
solely among those who really were in need of support, 
and were not allowed to be misused by swindlers. 


The Rabbis, however, took heed of the fact that there 
were some people who were not actually paupers, and 
even owned considerable property, but had neither the 
money nor the food to support themselves with. A pro- 


82 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


vision was therefore made that such people were to be 
permitted to accept charity, in order that they may not 
be compelled to sell their dwellings, their furniture, or 
their clothes (Peah VIII.8). One was not, however, per- 
mitted to accept charity if he possessed valuables or cer- 
tain luxurious objects, and who could sell them, even 
though he would have to sell them for less than their in- 
trinsic value (Ket. 68a). 


The Rabbis also made provision for the needs of the 
poor consumer and accordingly prohibited dealers from 
putting articles of food into storage for the purpose of 
raising the price by cutting down the available supply. 
Similarly, it was prohibited to export articles of food to 
foreign countries, lest this practice should result in rais- 
ing the price of these articles at home. Some of the 
Rabbis went even so far as to prohibit the making of 
profit from the dealing in food-stuffs, evidently intending 
to exclude the middleman (B. Batra 90; 91a). The Tal- 
mudists also gave the appointed authorities supervision 
over all dealings in articles of food and power to regulate 
the market places (B. Batra 89a). 


SUMMARY 


From the Talmudic laws, ordinances and regulations 
that have been quoted in the eight chapters of this the- 
sis, it will be readily seen how thorough were the Rabbis’ 
endeavors to protect the weaker classes of society against 
the stronger classes and elements. The Rabbis enacted 
special laws for the protection of the laborer whenever 
he was in need of the protecting arm of the Law. In 
whatever situation the laborer needed that protection— 
in questions regarding conditions of labor, the time of 
labor, the manner of performing this labor as well as pay- 
ment thereof, the Rabbis ever sought to protect him and 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 83 


to look after his welfare. They sought to protect the 
Jewish as well as the non-Jewish slave during the term 
of their servitude, and endeavored to find some means 
of effecting their release from bondage. The Talmudists 
provided also for the protection of minors, seeking to 
curb as much as possible, their parents or guardians in 
the exercise of their legal powers over them whenever 
these accrued to their own, and not the minors’ benefit. 
They also provided laws and regulations for the protec- 
tion of the woman against the man, and sought to help 
in every possible way the widow and the Agunah (the 
deserted woman) in their defenceless state. The Tal- 
mudists took heed also of the position of the debtor who, 
in their days, usually was a poor laborer or an artisan, 
and therefore enacted many laws for his protection 
against those who would exact interest or take pledges 
for loans made to him. 


The Jewish jurists found it necessary to enact certain 
laws for the due protection of tenants against the land- 
lords, for the evident reason that the tenants of that pe- 
riod usually belonged to the poorer and weaker elements 
of society and hence, in need of protection against the 
possible oppressions of the stronger element or class: 
They required of the landlord the giving of a reasonably 
lengthy period of time (in some instances as much as 
three years) as notice to his tenant of his intention to 
terminate his lease. They also enacted various other 
provisions for the tenant’s welfare, such as, requiring 
the landlord to properly repair or reconstruct a dwelling 
in case the same became uninhabitable. 


The Rabbis took especial pains to organize as well as 
to regulate communal philanthropy. They elaborated 
the ways and means for the collection and the distribu- 
tion of charity, doing their utmost to impart to it its full 
Hebrew connotation, Zedakah, Justice, which means re- 
gard for the rights of the poor. 


84 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


The Talmudic jurists, in their endeavor to protect the 
weak and helpless members of society, as in the above- 
enumerated instances, frequently ran the risk of being 
caught in logical inconsistencies and even of occasional 
violation of the letter, if not the spirit, of the Biblical Law. 
Moreover, in many of such cases, the Rabbis, deeming 
it inexpedient—for controversial or other reasons—to 
divulge the real motive for their enactments, found them- 
selves obliged to assign some one or another reason that 
to us appears as sophistical or as not entirely within the 
bounds of sound logic. © 


The Rabbis invariably sought to discover the ethical 
or the religious principle underlying the various Biblical 
Laws and elaborated them in accordance with these prin- 
ciples and none other. The religious principles of jus- 
tice and righteousness advocated by the Prophets were 
duly and zealously upheld by the Scribes and the Rabbis, 
and by them duly incorporated into the Talmudic Codes. 


COLUMBIA UNIVERSITY ORIENTAL STUDIES 85 


BIBLIOGRAPHY 


Sources 


The Bible quoted by book, chapter and paragraph. 

The Mishnah quoted by treatise, section and paragraph. 

The Babylonian Talmud quoted by treatise, folio and page. 

The Palestinian Talmud quoted by treatise, section and para- 
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Mekilta ed. Friedman quoted by section and paragraph. 

Sifre ed. Friedman quoted by section and paragraph. 

Sifra ed. Weiss quoted by section:and paragraph. 

Tosefta ed. Zuckermandel quoted by treatise, section and para- 
graph. 

Yad ha-Hazakah, code of laws, by Maimonides quoted by sec- 
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Responza, code of laws collected by Iben Adret quoted by sec- 
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Shulhan Aruk, code of laws by R. Joseph Caro quoted by sec- 
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BERGEL, J., Die Eheverhaeltnisse der alten Ju- 
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prudenz des Talmuds, Cohen Fest- 
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86 COLUMBIA UNIVERSITY ORIENTAL STUDIES 


FRISH, EPHRAIM., 


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COLUMBIA UNIVERSITY ORIENTAL STUDIES 87 


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ERRATA 


Preface, line 2, instead of sage read sages. 


Page 11, line 5, from bottom read to us in Post Biblical 
Literature. 


Page 15, line 2, instead of 30 read 20. 


Page 37, line 11, instead of a arrangement read an 
arrangement. 


Page 46, line 6, instead of one’ read one’s. 


Page 55, line 4, from bottom instead of Baba read Raba. 


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